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]
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.
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.
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.
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. 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]
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)]
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.
Scialabba v. De Osorio [573 U. S. ___ (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)]
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]
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)
In re. Rojas [ (2001)]
Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017): (<–Summary) Family membership can be a cognizable social group; must also prove nexus between membership & persecution for asylum.
Matter of K-S-E-, 27 I&N Dec. 818 (BIA 2020) [April 10, 2020]: Firm resettlement bar applies even if host country has made an offer of permanent residence and the individual has chosen not to accept the offer. (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.
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 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)
Zuniga-Perez and Hernandez-Campo v. Sessions (2018): Grants a review of a denial of a motion to suppress. (Summary)
Alom v. Whitaker (2018): standard of review de novo in waiver of joint filing requirement for good faith marriage. (Summary)
Amanfi v. Ashcroft, 328 F.3d 719, 729–30 (3d Cir. 2003): Membership in PSG can be just imputed and not actual.
Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005): Standard for withholding of removal is “clear probability” of persecution.
Kibinda v. Att’y Gen., 477 F.3d 113, 119 (3d Cir. 2007): Gov’t unable or unwilling to control persecutors.
Kang v. Att’y Gen., 611 F.3d 157, 164 (3d Cir. 2010): CAT relief and when to uphold BIA’s reversal of IJ’s decision
Espinoza-Cortex v. Att’y Gen., 607 F.3d 101, 107 (3d Cir. 2010): BIA must not ignore or misconstrue evidence. Persecutor may attribute political opinion to someone and act on that belief.
Garcia v. Att’y General, 665 F.3d 496, 502 (3d Cir. 2011), as amended (Jan. 13, 2012): Guatemalan witness who testified in court against a gang was member of PSG because persecuted for this action by gang members later.
Galarza v. Szalczyk [745 F.3d 634 (3rd Cir. 2013)]: U.S. citizen appealing being held without probable cause by county LEA because they thought they were under a mandatory detainer from ICE. (Summary)
Myrie v. Att’y Gen., 855 F.3d 509 (3d Cir. 2017): two-part test for identifying torture and gov’t acquiescence:
- What is likely to happen if petitioner is removed?
- Does what is likely to happen constitute torture?
- How are public officials likely to respond to the harm the petitioner describes?
- Will the response qualify as acquiescence?
- What is likely to happen if petitioner is removed?
Ricketts v. Attorney General (2018): Jurisdiction for denied nationality claim. (Summary)
Wang v. Attorney General (2018): False report re. transaction not nec. aggravated felony. (Summary)
Guerrero-Sanchez v. Warden York County Prison (2018): … (Summary here.)
City of Philadelphia v. Attorney General (2019): Sanctuary cities case: AG does not have the authority to impose special conditions (related to immigration detention) on federal grant for law enforcement. (Summary here)
Tilija v. Att’y Gen., 930 F.3d 165, 169-70, 172 (3d Cir. 2019): prima facie political asylum claim for being attacked and threatened for political support.
Radiowala v. Att’y Gen., 930 F.3d 577, 583 (3d Cir. 2019): Particularity & determining boundaries of the PSG.
Guadalupe v. A.G., No. 19-2239 (3d Cir. Feb. 26 2020): An NTA that is defective under Pereira CANNOT be cured by a subsequent hearing notice, and therefore does not trigger the stop-time rule. (Word Doc Summary) (PDF Summary)
Herrera-Reyes v. A.G., No. 19-2255 (3d Cir. Feb. 28 2020): Verbal threats constitute past persecution if sufficiently concrete and menacing; record must be considered in the aggregate. Harm to close associates and family members should be considered as supporting a claim to past persecution. (Word Doc Summary) (PDF Summary)
Sumalia v. Attorney General, No. 18-1342 (3d Cir. March 31, 2020): Threats are sufficient to establish persecution; BIA & IJ ignored case law and record re. reasonable fear; medical records and serious physical injury are not necessary to establish persecution; intimate details of sexual relationships are not necessary to establish sexual orientation. (Word Doc Summary) (PDF Summary)
Guzman Orellanas v. Attorney General, No. 19-1793 (3d Cir. April 17, 2020): “Persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group.” (at 3) (Word Doc Summary) (PDF Summary)
Lopez Ordonez v. Barr, No. 18-2469 (4th Cir. April 16, 2020): Atrocious persecution of asylum applicant while conscripted to Guatemalan military, including an infanticide. Vacated BIA’s denial because there really was a nexus between political opinion and persecution. (Word Doc Summary) (PDF Summary)
Budhathoki v. Nielsen (2018): Upholding the denial of SIJS petitions by USCIS re. necessary care and custody for individuals over 18. (Summary)
Shkabari v. Gonzales, 427 F.3d 324, 327 n.1 (6th 2005): If you don’t raise the claims before the CA, you can’t challenge the agency’s denial of those claims.
Ramaj v. Gonzales, 46 F.3d 520, 527 (6th 2006): Review agency’s factual findings for substantial evidence
Lin v. Holder, 565 F.3d 971, 978 (6th 2009): CA lacks jurisdiction to review issues that were not brought up in BIA appeal.
Harmon v. Holder, 758 F.3d 728, 732 (6th 2014): If BIA issues own decision rather than just affirming IJ, then BIA decision is final agency decision and gets reviewed, while IJ’s decision is reviewed only insofar as BIA’s opinion addressed it.
Rivas v. Sessions (2018): Remand of asylum application because agency failed to address asylum request of children. Also an example of trying (unsuccessfully) to plead membership in a cognizable group because of gang violence. (Summary here.)
Preap v. Johnson (2016):
Khoury v. Asher (2016):
Ochoa-Oregel (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 (2018): OR’s witness-tampering statute does not describe moral turpitude. (Summary)
Marinelarena v. Barr, F.3d 2019 WL 3227458, 19 Cal. Daily Op. Serv. 6909 (en banc) (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)