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.
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.
The Japanese Immigrant Case [189 U. S. 86 (1903)]: Fifth Amendment entitles aliens due process of law in deportation proceedings.
Kaplan v. Tod [267 U. S. 228 (1925)]: alien who had not entered U. S.
Johnson v. Eisentrager [339 U. S. 763 (1950)]: No Fifth Amendment protections to aliens outside U. S.
Carlson v. Landon [342 U. S. 524 (1952)]: upholding temporary detention of alien during deportation proceeding.
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, which doesn’t count as being in the U.S.
Kwong Hai Ghew v. Golding [344 U. S. 590 (1953)]: due process for aliens on American soil
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.
Cheng Fan Kwok v. INS [392 U. S. 206 (1968)]: challenges to determinations made during deportation proceedings/motions to reopen.
Mathews v. Diaz [426 U. S. 67 (1976)]: due process for aliens on American soil.
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)
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.
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)
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)
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)
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)
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)