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  • Article: Immigration in the Supreme Court, 2016 Term by Kevin R. Johnson

    Immigration in the Supreme Court, 2016 Term

    by


    The Supreme Court currently is slated to hear three immigration cases this Term.  Each of the cases have the potential to be major immigration decisions.  Each case raises constitutional as well as statutory issues.  

    Two of the cases come from the Ninth Circuit.  The U.S. Government, which was unsuccessful in each of the cases, sought review in the Supreme Court.

    Stay tuned for information about the cases.  SCOTUSBlog is a source for briefs, oral argument previews and recaps, and opinion analysis for Supreme Court cases. 

    The Court starts the Term with only eight Justices, which complicates matters. 

    Here are the three immigration cases, all that raise important issues of immigration law.

     

    Lynch v. Dimaya

    Issue(s): Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an immigrant's removal from the United States, is unconstitutionally vague.  In a rare move, the Ninth Circuit, in an opinion by Judge Stephen Reinhardt, stuck down a statute including the reference "crime of violence" as unconstitutionally vague.   The Board of Immigration Appeals had found that  burglary was a "crime of violence" for removal purposes.  Dimaya was a lawful permanent resident from the Philippines who had lived in the United States since 1992. 

     

    Lynch v. Morales-Santana Argument November 9

    Issue(s): (1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.    The Second Circuit, in an opinion by Judge Loheir, found that the gender distinction for citizenship was unconstitutional. 

    The Supreme Court has been seriously divided on the issue of gender distinctions in the citizenship laws in previous cases (See, e.g., Nguyen v. INS (2001); Miller v. Albright (1998).  This case allows the Court to reconsider the issue, with a decision made more difficult with only eight Justices.

     

    Jennings v. Rodriquez

    Issue(s): (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months. 

    The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, affirmed the district court’s permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention.  The panel also held that IJs must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class’s request for additional procedural requirements.

    This post originally appeared on Law Professor Blogs © 2014-2016 by Law Professor Blogs, LLC. All rights reserved. Reprinted with permission.


    About The Author

    Kevin Johnson Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.Dean Johnson has published extensively on immigration law and civil rights. Published in 1999, his book How Did You Get to Be Mexican? A White/Brown Man's Search for Identity was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration Law and the US-Mexico Border (2011), received the Latino Literacy Now’s International Latino Book Awards – Best Reference Book. Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog. A regular participant in national and international conferences, Dean Johnson has also held leadership positions in the Association of American Law Schools and is the recipient of an array of honors and awards. He is quoted regularly by the New York Times, Los Angeles Times, and other national and international news outlets.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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