Justia Civil Procedure Opinion Summaries

Sineneng-Smith operated a California immigration consulting firm, assisting clients to file applications for a labor certification program that once provided a path for aliens to adjust to lawful permanent resident status. Sineneng-Smith knew that her clients could not meet the long-passed statutory application-filing deadline but nonetheless charged each client over $6,000, netting more than $3.3 million. Sineneng-Smith was indicted under 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), which make it a felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” An enhanced penalty applies if the crime is “for the purpose of commercial advantage or private financial gain,” Appealing her convictions to the Ninth Circuit, Sineneng-Smith asserted a First Amendment right to file administrative applications on her clients’ behalf. The court invited amici to brief issues framed by the panel, then held that section 1324(a)(1)(A)(iv) is unconstitutionally overbroad under the First Amendment.A unanimous Supreme Court vacated. “The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.” No extraordinary circumstances justified the court's takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment arguments concerning her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that section 1324(a)(1)(A)(iv) might cover protected speech, including abstract advocacy and legal advice. A court is not "hidebound" by counsel’s precise arguments, but the Ninth Circuit’s "radical transformation of this case" went too far. View "United States v. Sineneng-Smith" on Justia Law

On April 3, 2020, 20 immigration detainees filed a habeas petition (28 U.S.C. 2241), seeking immediate release, claiming that due to underlying health conditions, their continued detention during the COVID-19 pandemic puts them at imminent risk of death or serious injury. The district court found that the petitioners face irreparable harm and are likely to succeed on the merits, that the government would “face very little potential harm” from their immediate release, and that “the public interest strongly encourages Petitioners’ release.” Without waiting for a response from the government, the court granted a temporary restraining order (TRO) requiring the release. The government moved for reconsideration, submitting a declaration describing conditions at the facilities, with details of the petitioners’ criminal histories. The court denied reconsideration, stating that the government had failed to demonstrate a change in controlling law, provide previously unavailable evidence, or show a clear error of law or the need to prevent manifest injustice. The court extended the release period until the COVID-19 state of emergency is lifted but attached conditions to the petitioners’ release. The government reports that 19 petitioners were released; none have been re-detained.The Third Circuit granted an immediate appeal, stating that the order cannot evade prompt appellate review simply by virtue of the label “TRO.” A purportedly non-appealable TRO that goes beyond preservation of the status quo and mandates affirmative relief may be immediately appealable under 28 U.S.C. 1292(a)(1). View "Hope v. Warden Pike County Correctional Facility" on Justia Law

The Center lodged a FOIA request with the Department of Justice (DOJ) for records of communications between the Attorney General, the Office of the Attorney General and any Office of Immigration Litigation or Office of the Solicitor General lawyers related to 11 certified cases decided in 2002-2009. DOJ produced about 1,000 pages but withheld 4,000 pages, citing FOIA Exemption 5, which allows the withholding of agency memoranda not subject to disclosure in the ordinary course of litigation, 5 U.S.C. 552(b)(5). Exemption 5 encompasses the attorney work product, attorney-client, and deliberative process privileges. DOJ submitted a Vaughn index describing each document withheld, identifying documents reflecting discussions between attorneys working within different offices of issues related to immigration cases under consideration or on certification for decision by the Attorney General.The Center unsuccessfully argued that the documents contained ex parte communications outside Exemption 5's scope because the DOJ attorneys’ eventual litigation role taints the advice they provide the Attorney General at the certification stage; removal proceedings end in federal court litigation where those same attorneys are opposite the immigrant. The Seventh Circuit affirmed. The Office of Immigration Litigation and Solicitor General attorneys do not hold interests adverse to the noncitizen at the stage at which the Attorney General certifies a case for decision. “ To conclude otherwise would chill the deliberations that department and agency heads like the Attorney General undertake in confidence to execute the weighty responsibilities of their offices.” View "National Immigrant Justice Center v. United States Department of Justice" on Justia Law

Aliens who lived in the U.S. committed drug crimes and were ordered removed. Neither moved to reopen his removal proceedings within 90 days, 8 U.S.C. 1229a(c)(7)(C)(i). Each later unsuccessfully asked the Board of Immigration Appeals to reopen their removal proceedings, arguing equitable tolling. Both had become eligible for discretionary relief based on judicial and Board decisions years after their removal. The Fifth Circuit denied their requests for review, holding that under the Limited Review Provision, 8 U.S.C. 1252(a)(2)(D), it could consider only only “constitutional claims or questions of law.”The Supreme Court vacated. The Provision’s phrase “questions of law” includes the application of a legal standard to undisputed or established facts. The Fifth Circuit had jurisdiction to consider claims of due diligence for equitable tolling purposes. A strong presumption favors judicial review of administrative action and a contrary interpretation of “questions of law” would result in a barrier to meaningful judicial review. The Provision’s statutory context, history, and precedent contradict the government’s claim that “questions of law” excludes the application of the law to settled facts. Congress has consolidated virtually all review of removal orders in one proceeding in the courts of appeals; the statutory history suggests it sought an “adequate substitute” for habeas review. If “questions of law” in the Provision does not include the misapplication of a legal standard to undisputed facts, then review would not include an element that was traditionally reviewable in habeas proceedings. View "Guerrero-Lasprilla v. Barr" on Justia Law

E.O.H.C. and his daughter fled Mixco, Guatemala, a city plagued by violence, crossed into the U.S. and presented themselves to Border Patrol officers. The government began removal proceedings, scheduling a hearing in San Diego. Under a new DHS policy, the Migrant Protection Protocols, the government returned the two to Mexico to await their hearing. They were left to fend for themselves in Tijuana. E.O.H.C. told the IJ that he did not fear going back to Guatemala. He later alleged that a Border Protection officer advised him to say this. He was not then represented by counsel. The IJ ordered removal. E.O.H.C. waived the right to appeal, allegedly because he feared being returned to Mexico. They were transferred to a Pennsylvania detention facility, where they argued that E.O.H.C.’s appeal waiver was invalid. The BIA granted an emergency stay of removal. The government flew them to San Diego for return to Mexico. They filed an emergency mandamus petition. The government returned them to Pennsylvania. They challenged the validity and applicability of the Protocols and argued that returning them to Mexico would interfere with their relationship with their lawyer and would violate several treaties. The district court dismissed for lack of subject-matter jurisdiction.The Third Circuit reversed in part. When a detained alien seeks relief that a court of appeals cannot meaningfully provide on a petition for review of a final order of removal, 8 U.S.C.1252(b)(9) and 1252(a)(4) do not bar consideration by a district court. One claim, involving the right to counsel, arises from the proceedings to remove them to Guatemala and can await a petition for review. The other claims challenge the plan to return the petitioners to Mexico in the meantime. For these claims, review is now or never. View "E.O.H.C. v. Secretary United States Department of Homeland Security" on Justia Law

Petitioner Alonso Martinez-Perez sought review of a final Board of Immigration Appeals (BIA) order that dismissed his appeal, holding that neither the BIA nor the Immigration Court had jurisdiction to grant Petitioner’s application for cancellation of removal. Petitioner was a native and citizen of Mexico. He entered the United States in 2001, without being inspected and admitted or paroled. On April 9, 2009, the Department of Homeland Security (DHS) charged him as removable from the United States pursuant to the Immigration and Nationality Act (INA) as an alien present in the United States without being admitted or paroled. Immigration officials served Petitioner with a notice to appear, which did not include a date and time for his hearing. One week later, Petitioner received notice of the date and time of his hearing in a separate document. Petitioner, through counsel, admitted the allegations contained in the notice to appear and conceded the charge of removability. The Immigration Judge found Petitioner removable. The Tenth Circuit found the Supreme Court held that a notice to appear that omits the removal proceeding’s time or place does not stop the alien’s accrual of continuous presence in the United States for purposes of cancellation of removal. The requirements of a notice to appear were claim-processing rules; the Court thus concluded the Immigration Court had authority to adjudicate issues pertaining to Petitioner’s removal even though Petitioner’s notice to appear lacked time-and-date information. With respect to issues raised regarding the BIA’s or Immigration Judge’s jurisdiction to grant Petitioner’s application in the absence of establishing a qualifying relative at the time of hearing: the Tenth Circuit concluded that for the BIA to conclude that neither it nor the Immigration Court had jurisdiction to grant Petitioner’s application was error. Moreover, before the BIA, Petitioner alleged and described what he contended was an improper delay on the part of the Immigration Court. Given this case’s procedural history, which is undisputed, the Tenth Circuit concluded it was within the BIA’s jurisdiction to interpret the applicable statutes in a way that would not penalize Petitioner for the Immigration Court’s delay. Because the BIA erred in holding that it lacked jurisdiction to grant Petitioner’s application and, in turn, failed to exercise its interpretive authority, the Court remanded. View "Martinez-Perez v. Barr" on Justia Law

The federal government entered final removal orders against about 1,000 Iraqi nationals in 2017, and has detained them or will detain them. Most remain in the U.S. due to diplomatic difficulties preventing their return to Iraq. The district court certified three subclasses: (1) primary class members without individual habeas petitions who are or will be detained by ICE, (2) those in the first subclass who are also subject to final removal orders, and (3) those in the first subclass whose motions to reopen their removal proceedings have been granted and who are being held under a statute mandating their detention. The Sixth Circuit previously vacated two preliminary injunctions, citing lack of jurisdiction under 8 U.S.C. 1252(g) and (f)(1). One prevented the removal of certain Iraqi nationals; another required bond hearings for each class member who had been detained for at least six months. A third injunction requires the government to release all primary subclass members, those in the first subclass, once the government has detained them for six months, no matter the statutory authority under which they were held. The district court concluded that the class members showed that the government was unlikely to repatriate them to Iraq in the reasonably foreseeable future and that the government “acted ignobly.” The Sixth Circuit vacated the injunction. Congress stripped all courts, except the Supreme Court, of jurisdiction to enjoin or restrain the operation of 8 U.S.C. 1221–1232 on a class-wide basis. View "Hamama v. Adducci" on Justia Law

In removal proceedings, petitioner Sandra Lopez-Munoz appeared and requested cancellation of removal, but the immigration judge declined the request. Petitioner unsuccessfully appealed to the Board of Immigration Appeals, moved for the Board to reopen her case, petitioned for review to the Tenth Circuit Court of Appeals, moved a second time for the Board to reopen her case, and moved for reconsideration of the denial of her second motion to reopen. The removal proceedings began with the service of a notice to appear. But because the notice to appear failed to include a date and time for her impending immigration hearing, petitioner argued the immigration judge lacked jurisdiction over the removal proceedings. If petitioner was correct, the Tenth Circuit concluded she might be entitled to relief based on the immigration judge’s lack of jurisdiction to order removal. In the Court’s view, however, the alleged defect would not preclude jurisdiction. It thus denied the petition for review. View "Lopez-Munoz v. Barr" on Justia Law

This case arose from a series of plans overseen by defendants to develop several real estate projects in the Northeast Kingdom of Vermont. Work on these projects spanned eight years, including fundraising and planning stages, and involved several limited partnerships and other corporate entities (the Jay Peak Projects). The Jay Peak Projects, at the direction of defendants Ariel Quiros and William Stenger, raised investment funds largely through a federal program known as the EB-5 Immigrant Investor Program (EB-5 Program). In April 2016, the U.S. Securities and Exchange Commission filed a lawsuit alleging securities fraud, wire fraud, and mail fraud against the Jay Peak Projects developers, Ariel Quiros and William Stenger. The Vermont Department of Financial Regulation also filed suit against Quiros and Stenger, alleging similar claims. On the basis of these and other allegations, plaintiffs, all foreign nationals who invested in the Jay Peak Projects, filed a multi-count claim against ACCD and several individual defendants. Intervenors, a group of foreign investors who were allegedly defrauded by defendants, appealed an order denying their motion to intervene in the State’s enforcement action brought against defendants. The Vermont Supreme Court affirmed because the motion to intervene was untimely. View "Vermont, et al. v. Quiros, et al." on Justia Law

Plaintiff-investors appealed the dismissal of their claims against the Vermont Agency of Commerce and Community Development (ACCD) and current and former state employees arising from the operation of a federally licensed regional center in the United States Customs and Immigration Services (USCIS) EB-5 program. USCIS designated ACCD as a regional center in 1997, and ACCD began operating the Vermont Regional Center (VRC). In 2006, the VRC partnered with a series of projects led by Ariel Quiros and William Stenger (referred to as the “Jay Peak Projects”). ACCD entered into a memorandum of understanding (MOU) with the Jay Peak Projects for each project. Employees of ACCD, including James Candido and Brent Raymond, both former executive directors of the VRC, and John Kessler, general counsel for ACCD, traveled with Jay Peak representatives to EB-5 tradeshows, at which they would share a table and jointly solicit investors and promote the Projects. ACCD employees represented to prospective investors, including plaintiffs, that the added protections of state approval and oversight made the Jay Peak Projects a particularly sound investment. However, unbeknownst to the investors, but known to VRC officials, no such state oversight by the VRC existed. In 2014, about twenty investors, including plaintiff Antony Sutton, sent complaints to Brent Raymond alleging that the Jay Peak Projects was misappropriating investor funds. In April 2016, the U.S. Securities and Exchange Commission filed a lawsuit alleging securities fraud, wire fraud, and mail fraud against the Jay Peak Projects developers, Ariel Quiros and William Stenger. The Vermont Department of Financial Regulation also filed suit against Quiros and Stenger, alleging similar claims. On the basis of these and other allegations, plaintiffs, all foreign nationals who invested in the Jay Peak Projects, filed a multi-count claim against ACCD and several individual defendants. The trial court granted plaintiffs’ motion to amend their complaint for a third time to a Fourth Amended Complaint, and then dismissed all thirteen counts on various grounds. Plaintiffs appealed. The Vermont Supreme Court reversed dismissal of plaintiffs’ claims of negligence and negligent misrepresentation against ACCD, gross negligence against defendants Brent Raymond and James Candido, and breach of contract and the implied covenant of good faith and fair dealing against ACCD. The Court affirmed dismissal of plaintiffs’ remaining claims. View "Sutton, et al. v. Vermont Regional Center, et al." on Justia Law