Category: ninth circuit

Travel ban ninth circuit decision

The Ninth Circuit Made the Right Decision: Now What?

The Ninth Circuit travel ban decision has now dealt another blow to the Executive Order limiting travel from six predominantly Muslim countries. This decision is the latest in a series of decisions that have upheld the restraining order against the ban. I believe that this decision is the right decision, however, I do believe that the Justice Department has made a mistake in appealing the case to the Supreme Court, which I would discuss below.

The Ninth Circuit’s decision is a reiteration of its previous decision dealing with the issue. The Ninth Circuit, in essence, said that the President and the Administration did not articulate a rational basis for the ban, which is a classification based on religion. The decision goes through all of the Administration’s arguments to support and the ban, and, one by one, the Court struck them down. The Court did allow the enhanced vetting procedures to go forward, which, in due time, would be in court. I believe that these procedures will also be unconstitutional based on the procedures once they are released.

  • Why Did the Administration Make a Mistake? 

I believe that the Administration made a mistake in asking the Supreme Court to review the restraining order decisions from two different cases. It is worth noting that the two courts, at least the Fourth Circuit, is not a bastion of liberal jurisprudence. This, in my opinion, would make a decision overruling the restraining orders much more difficult.

It is also worth noting that in a case called United States v. Texas, which reviewed President Obama’s Executive Order upheld the lower court’s decision enjoining the order based on the same grounds the new order was restrained. In that decision, the Supreme Court upheld the restraining order from the Fifth Circuit. That case held that the states had standing to challenge President Obama’s Executive Order granting relief from removal for millions of undocumented immigrants. I do not believe that there has been a shift in the law to change that decision. The Administration is sure to challenge jurisdiction based on state standing. Moreover, the chances of the Supreme Court granting certiorari to review the lower courts’ decision have diminished because of that binding prior decision.

I believe that the Administration should have waited for a ruling on the merits to appeal to the Supreme Court.

  • Why Are the Vetting Procedures Problematic? 

I believe that the vetting procedures will also be a problem under this administration. Unfortunately, we will not be able to know them until there are regulations dealing with these procedures are published. Then, immigration attorneys and the public at large would be able to review them. There will be legal challenges to the procedures if they were based on discriminatory criteria.

We now await the Supreme Court’s decision on whether it will take the case.

Ninth Circuit Rules that Applicant Waived Her Application By not Adhering to Deadlines

In an decision issued earlier this month, the Ninth Circuit ruled that an applicant waived her applications for a waiver of inadmissibility and Withholding of Removal by failing to timely apply. The government placed Taggar in  removal proceedings for being inadmissible under 8 U.S.C. § 1227(a)(1)(A) The government added additional charges under 8 U.S.C. § 1227(a)(1)(G)(ii) and 8 U.S.C. § 1227(a)(3)(B)(iii). She applied for Cancellation of Removal and Withholding of Removal. She failed to apply timely as instructed by the immigration judge and the government moved to pretermit the case for her late filing and the judge ordered her removal. She appealed to the Board of Immigration Appeals, which upheld the immigration judge‘s decision. 
In upholding the decisions, the Ninth Circuit ruled that the immigration judge did not abuse his discretion since he is entitled to  set deadlines under 8 C.F.R. § 1003.31. The court ruled that since she did not file within the deadline, she waived her applications and her removal order was proper.
This is a very good decision that should be applied in our circuit. I have had several cases where the government did not meet the immigration judge‘s deadlines and was still able to admit evidence and arguments. I look forward to arguing this case before our immigration judges

Supreme Court to Review Child Status Protection Act Case

The Supreme Court has just announced that it will review a case relating to the Child Status Protection Act (CSPA). CSPA prevents a visa beneficiary from “aging out” for visa purposes. A beneficiary can not take advantage of a visa petition approved on behalf of his parent, if he turns 21 before his parent’s adjustment of status.  
At issue in Mayorkas v. De Osorio is the provision of CSPA that allows a beneficiary to retain his original priority date and whether it applies to other visa categories. The BIA had ruled in Matter of Wang that the automatic conversion only applies to F2A petitions. The Ninth Circuit had ruled that such ruling was contrary to the regulations. The Service has appealed the decision and the Supreme Court accepted jurisdiction this week.
I hope that court’s decision will shed some light on one of the most convoluted immigration laws. I look forward to reading it next year.