Author: Kevin Johnson

The well-established doctrine of consular non-reviewability precludes judicial review of the visa decisions of State Department consular officers. It is a first cousin of immigration law’s exceptional “plenary power” doctrine, which generally immunizes from judicial review the substantive immigration decisions of Congress and the executive branch. In refusing to disturb the federal government’s reliance on secret evidence to deny the non-citizen spouse of a U.S. citizen admission into the country, the Supreme Court in 1950 summarized the plenary power doctrine as follows: “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” More recently, the Court has creatively avoided invoking the plenary power doctrine and instead ensured judicial review of immigration decisions. For example, in Landon v. Plasencia, the Court held that a lawful permanent resident seeking to return to the United States after a weekend in Mexico possessed a due process right to a hearing on the propriety of her exclusion from the country.

Yesterday the Supreme Court heard oral argument in Mellouli v. Holder, a challenge to the removal of Moones Mellouli, a lawful permanent resident from Tunisia, based on a Kansas misdemeanor drug paraphernalia conviction for possession of a sock used to hide drugs. The record of his conviction, the touchstone in removal proceedings, did not specify the controlled substance connected to Mellouli’s “drug paraphernalia.” Section 237(a)(2)(B)(1) of the Immigration and Nationality Act provides for the removal of “any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21).” The immigration court, Board of Immigration Appeals, and court of appeals all found Mellouli subject to removal under the statute.

Focusing on interpreting the text of the notoriously complex Immigration and Nationality Act and the application of generally applicable doctrines of administrative deference, the Roberts Court’s immigration decisions have demonstrated an unexceptional approach to immigration law.  The decision in Scialabba v. Cuellar de Osorio is the latest example.

Yesterday, the Court heard oral arguments in Mayorkas v. Cuellar de Osorio, a case raising a technical issue of statutory construction of the complex U.S. immigration laws. The specific question presented by the case is whether a provision of the Immigration & Nationality Act, as amended by the Child Status Protection Act (2002), allows children of all family immigrant visa applicants (or only for some family immigrant visas) who turn twenty-one (“age out”) while waiting for a visa, to be issued a visa with their parent when the visas are issued.  8 U.S.C. § 1153(h)(3) provides that, for an “aged out” child, “the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”  The Board of Immigration Appeals has interpreted the statute to cover only certain, rather than all, family immigrant visas.

While the Supreme Court historically has afforded considerable deference to the immigration bureaucracy in the interpretation and application of the U.S. immigration laws, it has not blindly deferred to the executive branch.  In Judulang v. Holder (2011),  for example, the Court unanimously rejected the conclusion of the Board of Immigration Appeals (BIA) that a lawful permanent resident was statutorily ineligible for relief from removal, finding that it “flunked” minimal judicial review.  Next week, in Mayorkas v. Cuellar de Osorio, the Court will return to the question of the appropriate deference to be afforded the BIA’s interpretation of the immigration laws.

In Padilla v. Kentucky (2010), the Supreme Court in a path-breaking decision held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on the failure to inform a criminal defendant of the immigration consequences of a criminal conviction before entering into a plea agreement.  Earlier this week, in Chaidez v. United States, Justice Kagan, writing for six other Justices, concluded that, under the principles set out in Teague v. Lane (1989), Padilla should not apply retroactively to criminal convictions entered before March 2010.

After a two-day delay because of the devastating storm Sandy, yesterday the Court heard oral arguments in Chaidez v. United States, which raises the issue of the retroactive application of Padilla v. Kentucky (2010).  In that blockbuster decision, the Court held that a Sixth Amendment ineffective assistance of counsel claim could be based on a defense counsel’s failure to inform his client of the possible immigration consequences of a plea agreement.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act.  Through a variety of changes to then-existing law, the Act took steps to facilitate the deportation of non-citizens convicted of crimes. Aggressively enforcing the reforms, the executive branch has removed record numbers of noncitizens – four hundred thousand per year in the last two years.  As a result, the Supreme Court has addressed a growing number of removal cases based on criminal convictions.  Earlier this month, for example, the Court heard oral arguments  in Moncrieffe v. Holder, in which the government removed a non-citizen based on his criminal conviction for possessing a small amount of marijuana.  In addition, the growing intersection of immigration and criminal law -- dubbed “crimmigration law” -- has spawned a growing genre of legal scholarship.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in Moncrieffe.]