IMMIGRATIONPROF: Dean Kevin Johnson Gives Us The Supreme’s “Immigration Lineup” For Oct. 2107 — It’s Much More Than Just The Travel Ban!

http://lawprofessors.typepad.com/immigration/2017/09/sessions-v-dimaya-oral-argument-october-2-jennings-v-rodriguez-oral-argument-oct-3-trump-v-intl-refugee-assistance-p.html

Dean Johnson writes:

”The Supreme Court will hear four oral argument in four cases in the first two weeks of the 2017 Term. And the cases raise challenging constitutional law issues that could forecever change immigration law. Watch this blog for previews of the oral arguments in the cases.

Sessions v. Dimaya, Oral Argument October 2. The U.S. Court of Appeals for the Ninth Circuit, in an opinion by the liberal lion Judge Stephen Reinhardt, held that a criminal removal provision, including the phrase “crime of violence,” was void for vagueness.

Jennings v. Rodriguez, Oral Argument, October 3. The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, found that the indefinite detention of immigrants violated the U.S. Constitution.

Dimaya and Jennings are being re-argued, both having originally been argued before Justice Scalia. One can assume that the eight Justice Court was divided and that Justice Gorsuch may well be the tiebreaker.

The final two immigration cases are the “travel ban” cases arising out of President Trump’s March Executive Order:

Trump v. Int’l Refugee Assistance Project. Oral Argument October 10.

Trump v. Hawaii. Oral Argument October 10.”

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Go on over to ImmigrationProf Blog at the above link where they have working links that will let you learn about the issues in these cases.

PWS

09-18-17

Led By Justice Thomas, Unanimous Supremes Reject USG’s Attempt To Deport Mexican Man For Consensual Sex With A Minor — “Strict Interpretation” Carries The Day!

Here is then full text of the opinion in Esquivel-Quintana v. Sessions:

https://www.supremecourt.gov/opinions/16pdf/16-54_5i26.pdf

Here’s a key excerpt from Justice Thomas’s opinion:

“Relying on a different dictionary (and “sparse” legislative history), the Government suggests an alternative “‘everyday understanding’” of “sexual abuse of a minor.” Brief for Respondent 16–17 (citing Black’s Law Dictionary 1375 (6th ed. 1990)). Around the time sexual abuse of a minor was added to the INA’s list of aggravated felonies, that dictionary defined “[s]exual abuse” as “[i]llegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance,” and defined “[m]inor” as “[a]n infant or person who is under the age of legal competence,” which in “most states” was “18.” Id., at 997, 1375. “‘Sex- ual abuse of a minor,’” the Government accordingly contends, “most naturally connotes conduct that (1) is illegal, (2) involves sexual activity, and (3) is directed at a person younger than 18 years old.” Brief for Respondent 17.

We are not persuaded that the generic federal offense corresponds to the Government’s definition. First, the Government’s proposed definition is flatly inconsistent with the definition of sexual abuse contained in the very dictionary on which it relies; the Government’s proposed definition does not require that the act be performed “by a parent, guardian, relative, or acquaintance.” Black’s Law Dictionary 1375 (6th ed. 1990) (emphasis added). In any event, as we explain below, offenses predicated on a special relationship of trust between the victim and offender are not at issue here and frequently have a different age requirement than the general age of consent. Second, in the context of statutory rape, the prepositional phrase “of a minor” naturally refers not to the age of legal competence (when a person is legally capable of agreeing to a contract, for example), but to the age of consent (when a person is legally capable of agreeing to sexual intercourse).

Third, the Government’s definition turns the categorical approach on its head by defining the generic federal offense of sexual abuse of a minor as whatever is illegal under the particular law of the State where the defendant was convicted. Under the Government’s preferred ap- proach, there is no “generic” definition at all. See Taylor, 495 U. S., at 591 (requiring “a clear indication that . . . Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses”); id., at 592 (“We think that ‘burglary’ in §924(e) must have some uniform definition independent of the labels employed by the various States’ criminal codes”).

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The structure of the INA, a related federal statute, and evidence from state criminal codes confirm that, for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16.”

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Notwithstanding a supposedly “conservative” Court, going back several Administrations the USG has been losing on a surprisingly regular basis in its attempts to take the most extreme and inclusive interpretations of various already very harsh deportation provisions. And, “strict constructionists” like Justice Thomas and the late Justice Scalia have sometimes had just as much problem with the Government’s overreach as have supposedly more liberal or “middle of the road” justices. That’s why I’m not convinced that Justice Gorsuch (who did not participate in this case) will be as much of a “Government ringer” as some believe, at least in immigration matters.

Despite a number of notable setbacks at the Court, DHS, DOJ, and the BIA all seem to be rather “tone deaf” to the Court’s message. The Executive Branch continues to take the most extreme anti-immigrant positions even where, as in this case, it requires ignoring the “unambiguous” statutory language.

Given the “maximo enforcement” posture of the Trump Administration, there is little reason to believe that the Executive Branch will “get” the Court’s message about more reasonable interpretations of deportation statutes. Hopefully, the Court will continue to stand up against such abuses of Executive authority.

PWS

05-31-17

Dean Kevin Johnson Summarizes Today’s SCt Argument In Esquivel-Quintana v. Sessions For SCOTUS Blog — Issue: Sexual Abuse Of A Minor!

http://www.scotusblog.com/2017/02/argument-analysis-justices-divided-meaning-sexual-abuse-minor-removal-purposes/#more-252948/

“The question before the Supreme Court is whether Esquivel-Quintana’s conviction constitutes an “aggravated felony” as “sexual abuse of a minor” under U.S. immigration law. The case raises fascinating, and complex, questions about Chevron deference to an agency’s reasonable interpretation of an ambiguous statute and about the rule of lenity that is generally applied to the interpretation of removal and criminal laws.

. . . . .

In sum, the justices did not seem to have reached a consensus as to whether Esquivel-Quintana’s crime constituted “sexual abuse of a minor” under the immigration laws. The justices’ questions revealed the complicated interaction among the relevant statutory provisions; the high stakes of removal for lawful permanent residents, the complex state/federal issues involved, and the intersection of criminal and immigration law add to the difficulty and significance of this case. A decision is expected by the end of June.”

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PWS

02/27/17