Justia Civil Procedure Opinion Summaries

After the government removed petitioner from the United Stated, the removal mooted the government's appeal of the district court's order directing the government to release petitioner from immigration detention. The government now moves to dismiss the appeal as moot and requests vacatur of the district court's decisions related to 8 C.F.R. 241.14(d), a regulation that the government had invoked to detain petitioner. Petitioner opposes the government's request for vacatur and separately requests vacatur of the Second Circuit's opinion granting the government's motion for a stay pending appeal.The Second Circuit held that because the district court's decisions related to 8 C.F.R. 241.14(d) could have legal consequences in future litigation between the parties, those decisions should be vacated so that "the rights of all parties are preserved." However, this court's opinion granting the government's motion for a stay pending appeal does not warrant vacatur because it does not have legal consequences for the parties. The court held that a decision concerning a stay is not a final adjudication on the merits of an appeal and lacks preclusive effect. Therefore, the court denied petitioner's motion to vacate this court's opinion granting the government's motion for a stay pending appeal, granted the government's motion to vacate the district court's decisions related to section 241.14(d), dismissed the appeal as moot, and remanded with instructions to dismiss petitioner's challenge to his detention as moot. View "Hassoun v. Searls" on Justia Law

In 1993, Tazu left his native Bangladesh, entered the U.S. without inspection, and applied for asylum based on political persecution. Eight years later, an IJ denied that application. Tazu appealed to the BIA, alleging ineffective assistance of counsel. In 2003, the BIA denied his appeal, giving him 30 days to depart. Nearly six years later, he was detained for removal. An attempt at removal failed. His passport had expired; the airline would not let him board the plane. A passport would not likely be issued quickly. In 2009, Tazu was granted supervised release. He complied with the terms of his release, held a job, paid taxes, and raised his children. Seeking a provisional waiver, in 2017, his son, a U.S. citizen, filed Form I-130, which was approved. Tazu did not immediately take the next step, a Form I212. In 2019, the government got Tazu’s renewed passport and re-detained him for removal. He sought habeas relief in New Jersey, filed his Form I-212, and moved to reopen his removal proceedings based on ineffective assistance of counsel. He lost on every front.The Third Circuit ordered the dismissal of the habeas petition; 8 U.S.C. 1252(g) strips courts of jurisdiction to review any “decision or action by the Attorney General to ... execute removal orders.” Section 1252(b)(9) makes a petition for review—not a habeas petition—the exclusive way to challenge a removal action and funnels Tazu’s claims to the Second Circuit. Tazu has a petition for review pending in the Second Circuit. He can stay with his family while that litigation is pending,. View "Tazu v. Attorney General United States" on Justia Law

The Supreme Court vacated its decision reversing the lower courts' conclusions that the Immigration Reform and Control Act of 1986 (IRCA) did not preempt Defendant's prosecution for identity theft, holding that, in accordance with the decision of the United States Supreme Court on certiorari in this case, Defendant's prosecution was not preempted by the IRCA.A district court judge found Defendant guilty after denying his motion to dismiss charges based on representations in his W-4 employment form and I-9 form. On appeal, Defendant argued that the IRCA preempted identify theft prosecutions. The court of appeals affirmed. The Supreme Court reversed, concluding that IRCA preempted Defendant's prosecution. The United States Supreme Court granted certiorari and held that state law prosecutions for identity theft were not preempted by the IRCA. The Kansas Supreme Court affirmed in accordance with the decision of the United States Supreme Court. View "State v. Garcia" on Justia Law

The Supreme Court vacated its decision reversing the judgment of both the court of appeals and district court concluding that the Immigration Reform and Control Act of 1986 (IRCA) did not preempt Defendant's prosecution for identity theft and making false information, holding that, in accordance with the decision of the United States Supreme Court on certiorari in this case, Defendant's prosecution was not preempted by the IRCA.A district court judge found Defendant guilty after denying his motion to dismiss charges based on representations in his W-4 employment form. On appeal, Defendant argued that the IRCA preempted identify theft and making false information prosecutions. The court of appeals affirmed. The Supreme Court reversed, concluding that IRCA preempted Defendant's prosecutions. The United State Supreme Court granted certiorari and held that state law prosecutions for identity theft and making false information were not preempted by the IRCA. The Kansas Supreme Court affirmed in accordance with the decision of the United States Supreme Court. View "State v. Morales" on Justia Law

An Immigration Judge with the Board of Immigration Appeals moved sua sponte to reopen Juvenal Reyes-Vargas' removal proceedings. The Board ruled that under 8 C.F.R. 1003.23(b)(1) the Board ruled that this regulation removed the IJ’s jurisdiction to reopen an alien’s removal proceedings after the alien has departed the United States (the regulation’s “post-departure bar”). The Tenth Circuit reviewed the Board's interpretation of its regulation using the framework announced in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), which clarified when and how courts defer to an agency interpreting its own regulations. Under that case, the Tenth Circuit determined it could defer to the Board’s interpretation only if the Court concluded, after rigorously applying all interpretative tools, that the regulation presented a genuine ambiguity and that the agency’s reading was reasonable and entitled to controlling weight. Applying this framework here, the Tenth Circuit concluded the regulation was not genuinely ambiguous on the issue in dispute: whether the post-departure bar eliminated the IJ’s jurisdiction to move sua sponte to reopen removal proceedings. In fact, the regulation’s plain language conclusively answered the question: the post-departure bar applies to a party’s “motion to reopen,” not to the IJ’s own sua sponte authority to reopen removal proceedings. So the Court did not defer, and granted Reyes-Vargas’s petition for review, vacated the Board’s decision, and remanded for further proceedings. On remand, the Board had to review the IJ’s conclusory decision that Reyes-Vargas had not shown “exceptional circumstances” as required before an IJ can move sua sponte to reopen removal proceedings. View "Reyes-Vargas v. Barr" on Justia Law

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