Category: Supreme Court

the president should not consider the ban decision a win

Beware Mr. President: The Supreme Court Did Not Give You a Win!!

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I read the Supreme Court’s decision on the travel ban today, and all I have to say is that it is not a win for the President. I will discuss below.

What did the Court Say?

The decision to grant certiorari on the case is not a final decision, it is a decision limiting the application of the injunctions currently in place against the President’s executive order. It ruled on two issues 1) whether the states and individuals had the standing to sue to stop the ban and 2)  whether the President can limit refugee admission based on national security grounds.

What will the Court Do?

The Court ruled that the injunction should stay in place for individuals, similarly situated to the Plaintiffs, who had a bona fide relationship with an individual or entity in the United States. The Court lifted the injunction when it came to individuals who do not have such connections. This reasoning also applied to refugees who may claim standing if they have such relationships. This reasoning is sure to lead to more litigation regarding the ban.

What is the Strategy Against the Ban?

I do not believe that the President should claim victory in this case. The simple reason is that this decision, in essence, gave potential standing to refugees, and gave organizations who help refugees standing to sue to further enjoin the ban.

The decision allowed refugees to claim standing if they have connections to an organization in the United States. So for example, a refugee who has gone through the background checks and has been approved for relocation to the United States might, potentially, have the standing to sue if they were denied admission to the United States. This also expands standing to the organizations themselves, who may, in essence, claim the necessary standing based on potential economic injury from the ban. Let us remember that these organizations receive government payments for the relocation of these refugees.

The decision also allows standing to family members to sue if there is a discriminatory reason for the denial of admission for their family members. Basically, the decision will expand standing to affected individuals as applied to their family members. Thus far, the ban has been challenged on facial grounds. In other words, the ban is being challenged because it is discriminatory on facial grounds, i.e. as it is read. if we move forward, the ban will also be challenged on “as applied” grounds i.e. as applied to these individuals with family members in the United States. These two grounds will surely lead to more challenges to the ban in court.

What are the possible Outcomes for the Case?

There are three possible outcomes to this case, and I believe that the Court will punt on the issue to allow a decision on the merits in the lower courts.

The first outcome might be for the Court to decide that the case is moot. The executive order itself will sunset within 90 days after the government conducts a study on the “extreme vetting” procedures for which the President advocated during the campaign. So when this case comes up for a decision before the Court, it might already be moot. However, one possible strategy against this issue is the fact that the issue might be capable of repeated in the future and evading review. This is the argument used in Roe v. Wade for example.

The Court may also remand the case to the lower court for more fact-finding and for a decision on the merits. The main issue here will be whether there are enough facts for the Court to make a decision. The main issue here is the discriminatory intent behind the executive order itself. The Court may remand the case to the lower court who are more equipped for fact-finding than the Supreme Court. The Court may keep the injunction in place until the decisions on the merits are issued.

Lastly, the Court may either uphold the injunction or remove it, allowing the ban to go into effect. This, however, will be unlikely, since the Court will essentially be giving a partial win on the merits to the Administration. I must say that the Court’s prior decisions give standing to states to challenge the President’s authority to enter such executive orders when they harm their interest.

I disagree with the President that today’s decision is an outright win for him. Stay tuned for future posts on this issue. Call us at 1(888)963-7326 to schedule a consultation with us.

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The Ninth Circuit Made the Right Decision: Now What?

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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.

Board of Immigration Appeals Holds that Admission of Conviction Might not Trigger Stop-Time Rule

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I have been an advocate of changing the Supreme Court’s decision that removal proceedings are civil and not criminal. The main reason being my argument is the fact that criminal law has infiltrated removal proceedings since the criminal grounds for removal have been expanded by Congress on several occasions.

One of the problems in removal proceedings is the definition of “conviction” for immigration law purposes. The common sense definition of the term does not apply in these “civil” proceedings, since a mere admission of enough facts makes you removable for immigration purposes. The consequences that come from such “conviction” are tremendous in the immigration context, including triggering the stop-time rule, a rule that would make a person ineligible for discretionary relief like Cancellation of Removal for non and lawful permanent resident.

The Board in a recent unpublished decision ruled that admission, without being informed of the possible consequences of such conduct and the true definition of the crime, did not trigger the stop-time rule under Matter of K, 7 I&N. Dec. 59 (BIA 1957).  Unfortunately, this is an unpublished decision by the Board, which under guidance, the Board does not have to follow. However, I have used these decisions in court proceedings and they were very persuasive. 

I ask you to please comment and let me know what you think. Also, please feel free to add me or follow me on social networks. Thank you for following me.

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Suppressing Evidence in Removal Proceedings

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One of the biggest problems in removal proceedings is the limited circumstances under which a respondent could challenge the government’s evidence. Usually the Service tries to introduce unreliable evidence to support the respondent’s deportability. I have had several cases when the government tried t o introduce hearsay statements from unnamed sources. The problem is that the Supreme Court has ruled that removal proceedings are civil in nature, decreasing the protections aliens receive. As a result the respondent would be unable to the Fourth Amendment to suppress evidence. A respondent could use the Fifth Amendment to suppress evidence if the evidence is unreliable and its introduction would be fundamentally unfair.  I have used the Fifth Amendment Due Process Clause to suppress evidence in removal proceedings before.
However, several circuits have applied the Fourth Amendment to suppress or even terminate removal proceedings. These cases are limited to egregious cases where the Service violates a respondent’s protected rights. The BIA has recently terminated proceedings where the Service committed these violations.
My dream is to argue a case where I would challenge the Supreme Court’s determination that removal proceedings are civil. I believe that this classification is erroneous. Removal proceedings have become more sophisticated and more aliens are being removed for criminal violations. These respondents deserve to receive Due Process if they are being banished from the country.       

Supreme Court to Review Child Status Protection Act Case

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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.  

BIA Rules that DOMA is no Longer a Bar to the Approval of Same-Sex Petitions

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In a decision issued on Wednesday, the BIA remanded an immigrant visa petition to the District Director because DOMA is no longer a bar to the approval of same-sex petitions. In Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013), a United States citizen petitioned for his spouse. The District Director denied the petition in 2010 and he appealed to the BIA. The BIA remanded the petition to address some issues, the Director issued a second denial and the Petitioner appealed the second denial. 

The Director had ruled that the same-sex couple had a valid marriage but the petition could not have been approved because of Section 3 of DOMA, which prohibited immigration benefits to same-sex couples. In remanding the petition to the District Director, the BIA reasoned that the Supreme Court’s ruling in U.S. v. Windsor, 133 S. Ct. 2675, 2695-96 (2013), removed the former prohibition under Section 3 of DOMA to the approval of same-sex immigration petitions. Thus, the BIA remanded the petition to the District Director for further consideration.


This is a monumental decision, since the decision is binding on USCIS when adjudicating immigrant visa petitions. It is also binding on all immigration judges around the nation.  These are the first effects of the Supreme Court’s decision which will affect the ways that immigration practitioners will tackle immigration cases. 

Motions to Reopen Removal Proceedings Under Vartelas

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Congress passed an overhaul of immigration law in 1996. These changes became known as IIRIRA, short for the Illegal Immigration Reform and Immigration Reform Act of 1996. One of the most important changes in that law was the changes in relief available for lawful permanent residents. One of the most prevalent forms of relief before the law was the availability of the INA 212(c) waiver, a form of relief that waived almost all forms of criminal convictions. The Supreme Court ruled in INS v. St. Cyr that the relief was retroactive, in other words it was still available for aliens who entered into criminal pleas before 1996, relying on the availability for that form of relief in immigration court. Another change was the change in the definition of “admission” under the Act. 

In  Vartelas , the main issue was whether the pre-IIRIRA definition of “admission” still applied to lawful permanent residents with pre-IIRIRA  convictions, when returning from a casual trip abroad. Vartelas  was a permanent resident who was classified as seeking admission after his return to the United States from a short trip abroad, because of a 1994 conviction. Vartelas  argued that the definition of “admission” under IIRIRA did not apply to him and the pre-IIRIRA definition should apply. Pre-IIRIRA, courts used the Fleuti doctrine, where a lawful permanent resident returning from a casual trip abroad was not classified as an applicant for admission.  In ruling that Vartelas  was not an applicant for admission, the Supreme Court ruled that the Fleuti doctrine was applicable to Vartelas’  case since IIRIRA’s definition of admission was not retroactive. Thus, the court reversed the removal order and remanded the case to the circuit court. 
The case can be used to reopen removal proceedings where the IIRIRA definition of “admission” was applied to cases where the alien pleaded guilty to a criminal charge before IIRIRA. The case should be reopened at the last court which had administrative control. You should contact an experienced immigration attorney to help you reopen your removal case if you believe that the case could help you. 

The Impact of Supreme Court’s Upcoming Decision on Same-Sex Couples

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As we await the Supreme Court’s decision regarding same sex marriage laws and California’s proposition 8, I thought I should post some notes on the potential implications of such decision in the immigration arena. Regardless of what the Supreme Court rules, the decision will sure have important implications on same sex couples with at least one immigrant partner. 
Under the current law, the Defense of Marriage Act denies federal benefits, including immigration benefits, to same sex couples. In other words, a partner in a same sex couple can not petition for another partner in a same sex relationship. This is an unfortunate limitation, especially in abusive relationships where one partner might be abusing another, and the immigrant partner is left with little or no recourse to stay in the United States. For example, the current law does not allow an abused partner to apply for benefits under the Violence Against Women Act, but might allow the alien to be the beneficiary of a U visa, which is a visa specifically allocated to victims of crimes. However, due to the reluctance of law enforcement to certify these petitions, and the potential dangerous implications on the abused spouse the chances for such a visa dwindle, and a abused partner might have no recourse at all when it comes to immigration benefits. One of the best things regarding VAWA is that the petition is reviewed by special agents at the Vermont Service Center, with the highest levels of confidentiality and protection. These same safeguards do not exist in the U visa procedures, and the abused spouse might have to testify against the abusive one. We all know the potential dangers that come with such testimony. These dangers will lead the abused spouse to stay away from reporting the abuse and will ultimately lead to a denial of immigration benefits. 
The Supreme Court’s ruling will be cataclysmic decision when it comes to federal benefits for same sex couples under federal law. I believe that the current law is unfair and should be struck down, since it creates two groups that are not equal under the law. I hope that the Supreme Court will do the right things and strike down DOMA. I just read on CNN that the decision will be announced tomorrow; I am keeping my fingers crossed.