Justice Gorsuch – immigrationcourtside.com

⚖️🇺🇸🗽👍🏼👨🏻‍⚖️JUSTICE GORSUCH LEADS 6-3 SUPREMES’ MAJORITY IN HANDING MIGRANTS HUGE VICTORY OVER DHS & EOIR INTRANSIGENCE/INCOMPETENCE IN “STOP TIME RULE” CASE — Niz-Chavez v. Garland — “Round Table” Amicus Plays A Role In Success! — “A single notice—rather than 2 or 20 documents!”

Associate Justice Neil Gorsuch — Associate Justice Neil M. Gorsuch; photograph by Franz Jantzen, 2017.

Niz-Chavez v. Garland, U.S. Supreme Court, 04-20-21

https://www.supremecourt.gov/opinions/20pdf/19-863_6jgm.pdf

SYLLABUS BY COURT STAFF:

Syllabus

NIZ-CHAVEZ v. GARLAND, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 19–863. Argued November 9, 2020—Decided April 29, 2021

Nonpermanent resident aliens ordered removed from the United States under federal immigration law may be eligible for discretionary relief if, among other things, they can establish their continuous presence in the country for at least 10 years. 8 U. S. C. §1229b(b)(1). But the so- called stop-time rule included in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that the pe- riod of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in a removal proceeding under §1229a. §1229b(d)(1). The term “notice to appear” is defined as “written notice . . . specifying” certain information, such as the charges against the al- ien and the time and place at which the removal proceedings will be held. §1229(a)(1). A notice that omits any of this statutorily required information does not trigger the stop-time rule. See Pereira v. Ses- sions, 585 U. S. ___. Here, the government ordered the removal of pe- titioner Agusto Niz-Chavez and sent him a document containing the charges against him. Two months later, it sent a second document, providing Mr. Niz-Chavez with the time and place of his hearing. The government contends that because the two documents collectively specified all statutorily required information for “a notice to appear,” Mr. Niz-Chavez’s continuous presence in the country stopped when he was served with the second document.

Held: A notice to appear sufficient to trigger the IIRIRA’s stop-time rule is a single document containing all the information about an individ- ual’s removal hearing specified in §1229(a)(1). Pp. 4–12.

(a) Section 1229b(d)(1) states that the stop-time rule is triggered by serving “a notice,” and §1229(a)(1) explains that “written notice” is “re- ferred to as a ‘notice to appear.’ ” Congress’s decision to use the indef- inite article “a” suggests it envisioned “a” single notice provided at a

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discrete time rather than a series of notices that collectively provide the required information. While the indefinite article “a” can some- times be read to permit multiple installments (such as “a manuscript” delivered over months), that is not true for words like “notice” that can refer to either a countable object (“a notice”) or a noncountable abstrac- tion (“sufficient notice”). The inclusion of an indefinite article suggests Congress used “notice” in its countable sense. More broadly, Congress has used indefinite articles to describe other case-initiating plead- ings—such as an indictment, an information, or a civil complaint, see, e.g., Fed. Rules Crim. Proc. 7(a), (c)(1), (e); Fed. Rule Civ. Proc. 3—and none suggest those documents might be delivered by installment. Nor does the Dictionary Act aid the government, as that provision merely tells readers of the U. S. Code to assume “words importing the singular include and apply to several persons, parties, or things.” 1 U. S. C. §1. That provision means only that terms describing a single thing (“a no- tice”) can apply to more than one of that thing (“ten notices”). While it certainly allows the government to send multiple notices to appear to multiple people, it does not mean a notice to appear can consist of mul- tiple documents. Pp. 4–9.

(b) The IIRIRA’s structure and history support requiring the govern- ment to issue a single notice containing all the required information. Two related provisions, §§1229(e)(1) and 1229a(b)(7), both use a defi- nite article with a singular noun (“the notice”) when referring to the government’s charging document—a combination that again suggests a discrete document. Another provision, §1229(a)(2)(A), requires “a written notice” when the government wishes to change an alien’s hear- ing date. The government does not argue that this provision contem- plates providing “the new time or place of the proceedings” and the “consequences . . . of failing . . . to attend such proceedings” in separate documents. Yet the government fails to explain why “a notice to ap- pear” should operate differently. Finally, the predecessor to today’s “notice to appear” required the government to specify the place and time for the alien’s hearing “in the order to show cause or otherwise.” §1252(a)(2)(A). The phrase “or otherwise” has since disappeared, fur- ther suggesting that the required details must be included upfront to invoke the stop-time rule. Indeed, that is how the government itself initially read the statute. The year after Congress adopted IIRIRA, in the preamble to a proposed rule implementing these provisions, the government acknowledged that “the language of the amended Act in- dicat[es] that the time and place of the hearing must be on the Notice to Appear.” 62 Fed. Reg. 449 (1997). Pp. 9–13.

(c) The government claims that not knowing hearing officers’ avail- ability when it initiates removal proceedings makes it difficult to pro-duce compliant notices. It also claims that it makes little sense to re- quire time and place information in a notice to appear when that in- formation may be later changed. Besides, the government stresses, its own administrative regulations have always authorized its current practice. But on the government’s account, it would be free to send a person who is not from this country—someone who may be unfamiliar with English and the habits of American bureaucracies—a series of letters over the course of weeks, months, maybe years, each containing a new morsel of vital information. Congress could reasonably have wished to foreclose that possibility. And ultimately, pleas of adminis- trative inconvenience never “justify departing from the statute’s clear text.” Pereira, 585 U. S., at ___. The modest threshold Congress pro- vided to invoke the stop-time rule is clear from the text and must be complied with here. Pp. 13–16.

789 Fed. Appx. 523, reversed.

GORSUCH, J., delivered the opinion of the Court, in which THOMAS, BREYER, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. KAVANAUGH, J., filed a dissenting opinion, in which ROBERTS, C. J., and ALITO, J., joined.

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This is the type of case where I had hoped that Justice Gorsuch would “stick to his interpretative guns” by stopping the Government from basically redesigning clear statutory requirements “willy nilly” to suit their own purposes and disadvantage respondents. And, he came through! Big time! I’ve been critical of Justice Gorsuch in the past and am likely to be so again in the future. But, in this case, he did the right thing, and I, for one, am grateful!

Most encouraging, Justice Gorsuch “got” the way that the DHS and EOIR, with the deck already unfairly stacked in their favor, manipulate clear legal requirements for their own nefarious purposes and to the disadvantage of those struggling for justice in an inherently unfair system. There is absolutely no doubt that receiving “piecemeal notice” — incomplete and often sent to incorrect addresses or “personally served” without the proper reading and explanations — works to further disadvantage respondents.

Indeed, illegal, ineffective notices — some setting hearings on “phantom dates” and “imaginary times” — lead directly to an over abundance of “in absentia” orders and consequent illegal removals. Some unrepresented individuals understand how to reopen their hearings for lack of notice — but many are clueless; the Government system strives to keep them that way to “jack up the numbers,” meet “quotas,” and improve stats. Worse yet, Congress sometimes uses the “bogus stats” generated by DOJ and DHS to write legislation, conduct oversight, and establish policy. This is an astoundingly broken, dysfunctional, and intentionally unfair system — a disgrace to our entire justice system and our national conscience each day it is allowed to continue to operate in its abusive ways!

The majority in this case was both very interesting, and at least mildly encouraging, for those of us who believe in due process and fundamental fairness for all persons, including migrants, under law. In addition to Trump appointees Justice Gorsuch and Justice Barrett, another GOP conservative appointee, Justice Thomas, joined Justices Breyer, Kagan, and Sotomayor in the majority!

And, although this case has (incorrectly) seemed “hyper technical” to some Supremes’ watchers unfamiliar with immigration, it will have huge impact — forcing reopening and “redos” in tens of thousands, perhaps hundreds of thousands, of cases in the already backlogged (1.3 million cases) Immigration Court. That will be the direct result of poor jurisprudence by the BIA, lousy court administration by EOIR, and horrible policy decisions by DHS.

Just another prime example of how “haste makes waste” enforcement gimmicks continue to cause unnecessary chaos in the system. Why not just appoint progressive experts as Immigration Judges and BIA Appellate Judges. Qualified jurists who will understand immigration law, due process, and “get in right” in the first instance? Certainly seems like a reasonable approach. What is Judge Garland waiting for?

This, in turn should add to the already loud cries (from virtually everywhere outside Judge Garland’s universe and the restrictionist right) for sensible, readily available backlog reductions and accelerated movement toward better judges and independence in the Immigration Courts, not to mention better management in the DHS enforcement programs.

Here’s my favorite quote from Justice Gorsuch’s majority opinion:

In the end, though, all this speculation is beside the point. The dissent tries to predict how the government will react to a ruling that requires it to follow the law and then pro- ceeds to assess the resulting “costs” and “benefits.” Post, at 17, 20–21. But that kind of raw consequentialist calcula- tion plays no role in our decision. Instead, when it comes to the policy arguments championed by the parties and the dissent alike, our points are simple: As usual, there are (at least) two sides to the policy questions before us; a rational Congress could reach the policy judgment the statutory text suggests it did; and no amount of policy-talk can overcome a plain statutory command. Our only job today is to give the law’s terms their ordinary meaning and, in that small way, ensure the federal government does not exceed its statutory license. Interpreting the phrase “a notice to ap-pear” to require a single notice—rather than 2 or 20 docu- ments—does just that.

*

At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms en- sure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.

The judgment of the Court of Appeals for the Sixth Cir- cuit is

Reversed.

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

And, here’s some “immediate commentary” by Round Table spokesperson “Sir Jeffrey” Chase:

Victory! This was the case in which our Round Table amicus brief was specifically referenced in oral argument.

Congrats to all involves, and Due Process Forever!

PWS

04-29-21

⚖️SUPREMES: In 5-3 Decision By Justice Gorsuch, Respondent Has Burden Of Proof On Cancellation & Loses On Ambiguous Record Of Conviction!

Pereida v. Wilkinson, U.S., 03-04-21

Here’s the link to the full decision:

https://www.supremecourt.gov/opinions/20pdf/19-438_j4el.pdf

MAJORITY: Justice Gorsuch (opinion), Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Kavanaugh

DISSENT: Justice Breyer (opinion), Justice Kagtan, Justice Sotomayor

NOT PARTICIPATING: Justice Barrett

SYLLABUS (by Court staff):

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 19–438. Argued October 14, 2020—Decided March 4, 2021

Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully, a charge Mr. Pereida did not contest. Mr. Pereida sought instead to establish his eligibility for cancellation of removal, a discretionary form of relief under the Immigration and Nationality Act (INA). 8 U. S. C. §§1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonper- manent residents to prove, among other things, that they have not been convicted of specified criminal offenses. §1229b(b)(1)(C). While his proceedings were pending, Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. §28–608 (2008). Ana- lyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of re- moval, §§1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Because Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unli- censed business, and thus the conviction likely constituted a crime in- volving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. But because Mr. Pereida bore the burden of proving his eligibility for cancellation of removal, the ambiguity in the record meant he had not carried that burden and he was thus ineligible for discretionary relief.

Held: Under the INA, certain nonpermanent residents seeking to cancel

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a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. An alien has not carried that bur- den when the record shows he has been convicted under a statute list- ing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction. Pp. 5–17.

(a) The INA squarely places the burden of proof on the alien to prove eligibility for relief from removal. §1229a(c)(4)(A). Mr. Pereida accepts his burden to prove three of four statutory eligibility requirements but claims a different rule should apply to the final requirement at issue here—whether he was convicted of a disqualifying offense. Mr. Pereida identifies nothing in the statutory text that singles out that lone requirement for special treatment. The plain reading of the text is confirmed by the context of three nearby provisions. First, the INA specifies particular forms of evidence that “shall constitute proof of a criminal conviction” in “any proceeding under this chapter,” regardless of whether the proceedings involve efforts by the government to re- move an alien or efforts by the alien to establish eligibility for relief. §1229a(c)(3)(B). Next, Congress knows how to impose the burden on the government to show that an alien has committed a crime of moral turpitude, see §§1229a(c)(3), 1227(a)(2)(A)(i), and yet it chose to flip the burden when it comes to applications for relief from removal. Fi- nally, the INA often requires an alien seeking admission to show “clearly and beyond doubt” that he is “entitled to be admitted and is not inadmissible,” §1229a(c)(2), which in turn requires the alien to demonstrate that he has not committed a crime involving moral turpi- tude, §1182(a)(2)(A)(i)(I). Mr. Pereida offers no account why a rational Congress would have placed this burden on an alien who is seeking admission, but lift it from an alien who has entered the country ille- gally and faces a lawful removal order. Pp. 5–7.

(b) Even so, Mr. Pereida contends that he can carry the burden of showing his crime did not involve moral turpitude using the so-called “categorical approach.” Applying the categorical approach, a court considers not the facts of an individual’s conduct, but rather whether the offense of conviction necessarily or categorically triggers a conse- quence under federal law. Under Mr. Pereida’s view, because a person could hypothetically violate the Nebraska statute without committing fraud—i.e., by carrying on a business without a license—the statute does not qualify as a crime of moral turpitude. But application of the categorical approach implicates two inquiries—one factual (what was Mr. Pereida’s crime of conviction?), the other hypothetical (could some- one commit that crime of conviction without fraud?). And the Ne- braska statute is divisible, setting forth multiple crimes, some of which the parties agree are crimes of moral turpitude. In cases involving

Cite as: 592 U. S. ____ (2021) 3 Syllabus

divisible statutes, the Court has told judges to determine which of the offenses an individual committed by employing a “modified” categori- cal approach, “review[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior convic- tion.” Mathis v. United States, 579 U. S. ___, ___. This determination, like many issues surrounding the who, what, when, and where of a prior conviction, involves questions of historical fact. The party who bears the burden of proving these facts bears the risks associated with failing to do so. This point is confirmed by the INA’s terms and the logic undergirding them. A different conclusion would disregard many precedents. See, e.g., Taylor v. United States, 495 U. S. 575, 600. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, see, e.g., Johnson v. United States, 559 U. S. 133, they work against the alien seeking relief from a lawful removal order. Congress can, and has, allocated the burden differently. Pp. 7– 15.

(c) It is not this Court’s place to choose among competing policy arguments. Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit. And Mr. Pereida fails to acknowledge some of the tools Congress seemingly did afford aliens faced with record-keeping challenges. See, e.g., §1229a(c)(3)(B). Pp. 15–17.

916 F. 3d 1128, affirmed.

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C.J.,andTHOMAS,ALITO,andKAVANAUGH,JJ.,joined. BREYER,J.,filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.

KEY QUOTE FROM DISSENT:

Finally, it makes particularly little sense to disregard this core feature of the categorical approach here. See id., at 203–204. As already noted, cancellation of removal is discretionary. Thus, when a conviction is not disqualifying under the categorical approach, the Government may still deny the noncitizen relief. If it turns out that an individual with a record like the one here in fact violated the statute in a reprehensible manner, that can be accounted for during the discretionary phase of the proceedings, when the categorical approach does not apply.

***

In my view, the Court should follow Congress’ statute. Congress has long provided that immigration courts apply- ing the INA provision here, like sentencing courts applying ACCA, must follow the categorical approach. See Mellouli, 575 U. S., at 805–806. Our cases make clear how that approach applies in a case like this one. We should follow our earlier decisions, particularly Taylor, Shepard, and John- son. And, were we to do so, ineluctably they would lead us to determine that the statutory offense of which Mr. Pereida was “convicted” is not “necessarily” a “crime involving moral turpitude.”

Because the Court comes to a different conclusion, with respect, I dissent.

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“When in doubt, throw ‘em out,” seems to be the majority’s refrain. As pointed out by Justice Breyer, a decision that allowed Mr. Pereida, who has lived in the U.S. for a quarter of a century, to apply for cancellation of removal because of the uncertainty as to whether his 2010 conviction for “attempted criminal impersonation” under Nebraska law involved “moral turpitude,” would not have guaranteed him relief. It merely would have allowed the Immigration Judge to weigh the substantial equities that Mr. Pereida and his family had developed against his decade-old criminal conviction.

The Immigration Judge could then have decided, on the basis of a fully developed record, in the exercise of discretion whether or not Mr. Pereida merited a “second chance” in the U.S. And, of course, if the application were granted, ICE would still have the ability to appeal to the BIA, which exercises “de novo” review on questions of discretion.

There is lots that needs to be changed about our current immigration system. It’s too bad that Congress appears too deadlocked to get the job done.

PWS

03-04-21

UPDATE:

”Sir Jeffrey” Chase just reminded me that our Round Table 🛡⚔️filed an amicus brief in support of the respondent’s position in this case. Sadly, we didn’t carry the day, here! ☹️

But, we’ll be heard from again on the “categorical approach.” I guarantee it!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-04-21

SUPREME BOMBSHELL: JUSTICE GORSUCH PROVIDES CRITICAL FIFTH VOTE FOR OVERTURNING DEPORTATION STATUTE FOR UNCONSTITUTIONAL VAGUENESS! — Administration Suffers Yet Another Legal Setback, This Time At the High Court! – Sessions v. Dimaya — Get The Full Opinion, Court Syllabus, Key Quotes, & My “Instant Analysis” HERE!

Dimaya–15-1498_1b8e

Sessions v. Dimaya, No. 15–1498, 04-17-18 (5-4 Decision)

Syllabus By Court Staff:

The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the Unit- ed States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [18 U.S.C. §16] . . . ) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208.

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree bur- glary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar re-

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sidual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitu- tionally vague.

Held: The judgment is affirmed.

803 F. 3d 1110, affirmed.
JUSTICE KAGAN delivered the opinion of the Court with respect to

Parts I, III, IV–B, and V, concluding that §16’s residual clause is un- constitutionally vague. Pp. 6–11, 16–25.

(a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA’s residu- al clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. To begin, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judi- cial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at ___. Compounding that uncer- tainty, ACCA’s residual clause layered an imprecise “serious poten- tial risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” id., at ___, resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” id., at ___. Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, §16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. Id., at ___. And its “substantial risk” thresh- old is no more determinate than ACCA’s “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result. Id., at ___. Pp. 6–11.

(b) The Government identifies three textual discrepancies between ACCA’s residual clause and §16(b) that it claims make §16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce imper- missible vagueness or otherwise makes the statutory inquiry more determinate. Pp. 16–24.

(1) First, the Government argues that §16(b)’s express require-

Cite as: 584 U. S. ____ (2018) 3

Syllabus

ment (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction”— in other words, a court applying §16(b) may not “consider risks aris- ing after” the offense’s commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any of- fense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the tem- poral language, a court applying the ordinary case approach, whether in §16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime is committed. The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.

Second, the Government says that the §16(b) inquiry, which focus- es on the risk of “physical force,” “trains solely” on the conduct typi- cally involved in a crime. Brief for Petitioner 36. In contrast, ACCA’s residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140. So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequenc- es. Thus, the force/injury distinction does not clarify a court’s analy- sis of whether a crime qualifies as violent.

Third, the Government notes that §16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCA’s residual clause meaning. But to say that they failed to resolve the clause’s vagueness is hardly to say they caused the problem. Pp. 16– 21.

(2) The Government also relies on judicial experience with §16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two §16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions. Pp. 21–24.

JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR, concluded in Parts II and IV–A:

(a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed

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because the removal of an alien is a civil matter rather than a crimi- nal case. This Court’s precedent forecloses that argument. In Jor- dan v. De George, 341 U. S. 223, the Court considered what vague- ness standard applied in removal cases and concluded that, “in view of the grave nature of deportation,” the most exacting vagueness standard must apply. Id., at 231. Nothing in the ensuing years calls that reasoning into question. This Court has reiterated that deporta- tion is “a particularly severe penalty,” which may be of greater con- cern to a convicted alien than “any potential jail sentence.” Jae Lee v.United States, 582 U. S. ___, ___. Pp. 4–6.

(b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be aban- doned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact- based approach is an untenable interpretation of §16(b). 576 U. S., at ___. Moreover, a fact-based approach would generate constitutional questions. In any event, §16(b)’s text demands a categorical ap- proach. This Court’s decisions have consistently understood lan- guage in the residual clauses of both ACCA and §16 to refer to “the statute of conviction, not to the facts of each defendant’s conduct.”Taylor v. United States, 495 U. S. 575, 601. And the words “by its na- ture” in §16(b) even more clearly compel an inquiry into an offense’s normal and characteristic quality—that is, what the offense ordinari- ly entails. Finally, given the daunting difficulties of accurately “re- construct[ing],” often many years later, “the conduct underlying [a] conviction,” the conduct-based approach’s “utter impracticability”— and associated inequities—is as great in §16(b) as in ACCA. John- son, 576 U. S., at ___. Pp. 12–15.

JUSTICE GORSUCH, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U. S. ___, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government’s argument that a less-than-fair- notice standard should apply where (as here) a person faces only civ- il, not criminal, consequences from a statute’s operation is unavail- ing. In the criminal context, the law generally must afford “ordinary people . . . fair notice of the conduct it punishes,” id., at ___, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard

Cite as: 584 U. S. ____ (2018) 5

Syllabus

because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving ei- ther the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. Pp. 1–19.

KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, in which GINSBURG, BREYER, SOTOMAYOR, and GORSUCH, JJ., joined, and an opin- ion with respect to Parts II and IV–A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined as to Parts I–C–2, II–A–1, and II–B.

Key Quote From Justice Kagan’s Majority (Pt. V):

Johnson tells us how to resolve this case. That decision held that “[t]wo features of [ACCA’s] residual clause con- spire[d] to make it unconstitutionally vague.” 576 U. S., at ___ (slip op., at 5). Because the clause had both an ordinary-case requirement and an ill-defined risk thresh- old, it necessarily “devolv[ed] into guesswork and intui- tion,” invited arbitrary enforcement, and failed to provide fair notice. Id., at ___ (slip op., at 8). Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCA’s residual clause, §16(b) “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id., at ___ (slip op., at 6). We accordingly affirm the judgment of the Court of Appeals.

Key Quote From Justice Gorsuch”s Concurring Opinion:

Vague laws invite arbitrary power. Before the Revolu tion, the crime of treason in English law was so capa ciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya sub ject to removal for having committed a crime, the Immi gration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

Key Quote From Chief Justice Roberts’s Dissenting Opinion:

The more constrained inquiry required under §16(b)— which asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense—does not itself engender “grave uncertainty about how to estimate the risk posed by a crime.” And the provision’s use of a commonplace sub- stantial risk standard—one not tied to a list of crimes that lack a unifying feature—does not give rise to intolerable “uncertainty about how much risk it takes for a crime to qualify.” That should be enough to reject Dimaya’s facial vagueness challenge.4

Because I would rely on those distinctions to uphold

——————

4 The Court also finds it probative that “a host of issues” respecting §16(b) “divide” the lower courts. Ante, at 22. Yet the Court does little to explain how those alleged conflicts vindicate its particular concern about the provision (namely, the ordinary case inquiry). And as the Government illustrates, many of those divergent results likely can be chalked up to material differences in the state offense statutes at issue. Compare Escudero-Arciniega v. Holder, 702 F. 3d 781, 783–785 (CA5 2012) (per curiam) (reasoning that New Mexico car burglary “requires that the criminal lack authorization to enter the vehicle—a require- ment alone which will most often ensure some force [against property] is used”), with Sareang Ye v. INS, 214 F. 3d 1128, 1134 (CA9 2000) (finding it relevant that California car burglary does not require unlaw- ful or unprivileged entry); see Reply Brief 17–20, and nn. 5–6.

14 SESSIONS v. DIMAYA ROBERTS, C. J., dissenting

§16(b), the Court reproaches me for not giving sufficient weight to a “core insight” of Johnson. Ante, at 10, n. 4; seeante, at 15 (opinion of GORSUCH, J.) (arguing that §16(b) runs afoul of Johnson “to the extent [§16(b)] requires an ‘ordinary case’ analysis”). But the fact that the ACCA residual clause required the ordinary case approach was not itself sufficient to doom the law. We instead took pains to clarify that our opinion should not be read to impart such an absolute rule. See Johnson, 576 U. S., at ___ (slip op., at 10). I would adhere to that careful holding and not reflexively extend the decision to a different stat- ute whose reach is, on the whole, far more clear.

The Court does the opposite, and the ramifications of that decision are significant. First, of course, today’s holding invalidates a provision of the Immigration and Nationality Act—part of the definition of “aggravated felony”—on which the Government relies to “ensure that dangerous criminal aliens are removed from the United States.” Brief for United States 54. Contrary to the Court’s back-of-the-envelope assessment, see ante, at 23, n.12, the Government explains that the definition is “critical” for “numerous” immigration provisions. Brief for United States 12.

In addition, §16 serves as the universal definition of “crime of violence” for all of Title 18 of the United States Code. Its language is incorporated into many procedural and substantive provisions of criminal law, including provisions concerning racketeering, money laundering, domestic violence, using a child to commit a violent crime, and distributing information about the making or use of explosives. See 18 U. S. C. §§25(a)(1), 842(p)(2), 1952(a), 1956(c)(7)(B)(ii), 1959(a)(4), 2261(a), 3561(b). Of special concern, §16 is replicated in the definition of “crime of violence” applicable to §924(c), which prohibits using or carrying a firearm “during and in relation to any crime of violence,” or possessing a firearm “in furtherance of any such crime.” §§924(c)(1)(A), (c)(3). Though I express no view on whether §924(c) can be distinguished from the provision we consider here, the Court’s holding calls into question convictions under what the Government warns us is an “oft-prosecuted offense.” Brief for United States 12.

Because Johnson does not compel today’s result, I respectfully dissent.

Key Quote From Justice Thomas’s Dissent:

I agree with THE CHIEF JUSTICE that 18 U. S. C. §16(b), as incorporated by the Immigration and Nationality Act (INA), is not unconstitutionally vague. Section 16(b) lacks many of the features that caused this Court to invalidate the residual clause of the Armed Career Criminal Act (ACCA) in Johnson v. United States, 576 U. S. ___ (2015). ACCA’s residual clause—a provision that this Court had applied four times before Johnson—was not unconstitu tionally vague either. See id., at ___ (THOMAS, J., concur ring in judgment) (slip op., at 1); id., at ___–___ (ALITO, J., dissenting) (slip op., at 13–17). But if the Court insists on adhering to Johnson, it should at least take Johnson at its word that the residual clause was vague due to the “‘sum’” of its specific features. Id., at ___ (majority opinion) (slip op., at 10). By ignoring this limitation, the Court jettisonsJohnson’s assurance that its holding would not jeopardize “dozens of federal and state criminal laws.” Id., at ___ (slip op., at 12).

While THE CHIEF JUSTICE persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause. See id., at ___–___ (opinion of THOMAS, J.) (slip op., at 7–18). Second, if the Court thinks that §16(b) is unconstitutionally vague be cause of the “categorical approach,” see ante, at 6–11, then the Court should abandon that approach—not insist on reading it into statutes and then strike them down. Accordingly, I respectfully dissent.

****************************************

Gee whiz, those Trumpsters and GOP Senators who were overflowing with their praise of Justice Gorsuch’s brilliance during his confirmation hearings must be beside themselves now that he joined the “Gang of Four” in striking down a statute in an immigration enforcement case!

I predicted early on that Gorsuch might surprise those on both sides who expected him to be a “complete Trump toady.” Indeed, the case that drove today’s decision in Dimaya, Johnson v. United States, was written by none other than Justice Scalia, one of Justice Gorsuch’s “juridical role models.” At bottom, Dimaya is all about strict adherence to the Constitution and separation of powers, two things that Gorsuch as extolled in past decisions.

No, I don’t think that Justice Gorsuch is likely to team up with Justices Kagan, Ginsburg, Breyer, and Sotomayor on most future immigration cases. But, I am encouraged that he seems to be going where his legal principles, whether one agrees with them or not, take him, rather than just voting to support the Administration’s hard-line immigration agenda as many had predicted and some had hoped or assumed would happen.

There are other important immigration cases before the Supremes where adherence to the literal language of a statute and skepticism about giving the Executive unbridled power under separation of powers could aid the respondent’s position. So, while this might not be a “normal” majority configuration, it could well be repeated in some future immigration case. Let’s hope so!

Interestingly, I had this issue come up in one of the last cases I wrote before retiring from the Arlington Immigraton Court. I noted that the respondent made a strong argument for unconstitutionality under Johnson v, United States. However, as an Immigration Judge, I had no authority to hold a statute unconstitutional (although, ironically, under today’s convoluted system, the respondent was required to make his constitutional argument before me to “preserve” it for review by the Court of Appeals). So, I merely “noted” the constitutional issue for those higher up the “judicial food chain” and decided the issue on the basis that burglary as defined under the state law in question was not categorically a “crime of violence” under the so-called “categorical approach.”

Two other points worth mentioning:

In this particular case, the Supremes upheld the ruling of the much maligned (particularly by Trump & Sessions) 9th Circuit Court of Appeals, having jurisdiction over California ;
This type of issue is frequently recurring in Immigration Court where many, perhaps the majority, of respondents are unrepresented. How would an unrepresented individual who does not even speak English make the type of sophisticated legal arguments that a) got this case to the Supremes in the first place, and b) persuaded the majority of the Court? Of course, they couldn’t. That’s why much of what is going on in today’s U.S. Immigration Courts is a farce — a clear violation of constitutional Due Process that the Federal Courts have been doing their best to ignore or gloss over for many decades.
As more light is shed on the much misunderstood U.S. Immigration Court system, both Congress and the Article III Courts must come to grips with the procedural, ethical, and fairness inadequacies built into today’s “captive” Immigration Courts and the utter lack of any concern about protecting the legal rights of migrants shown by Jeff Sessions and the rest of the Trump Administration. Shockingly, they have actually pledged to stomp on migrants already unfulfilled rights to fair hearings in the name of a “false efficiency.”
Join the “New Due Process Army” and help stop the continuing abuses of human rights, statutory rights, and constitutional rights of migrants by Sessions and the rest of the “Trump Scofflaws!”

PWS

04-17-18

“GOOD ENOUGH FOR GOVERNMENT WORK” – 2d CIR. GIVES “CHEVRON DEFERENCE” TO BIA’S Matter of L-A-C-, 26 I. & N. Dec. 516 (B.I.A. 2015) – Migrants Have No Right to Advance Notice Of Required Corroboration! – Wei Sun v. Sessions

CA2-WeiSunvSessions

Wei Sun v. Sessions, 2d Cir., 02-23-18, published

PANEL: LEVAL, LIVINGSTON, and CHIN, Circuit Judges.

OPINION BY: Judge Chin

KEY QUOTE/SUMMARY:

Petitioner Wei Sun (“Sun”) seeks review of a June 26, 2015 decision of the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying him asylum for religious persecution in China. Sun entered the United States on a visitor visa in 2007 and subsequently filed a timely application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231(b)(3), respectively, and for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 208.16. The IJ and the BIA denied Sun’s petition on the ground that he failed to meet his burden of proof because of an absence of corroborating evidence.

The BIA interpreted the corroboration provision of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 303 (2005), as not requiring an IJ to give a petitioner specific notice of the evidence needed to meet his burden of proof, or to grant a continuance before ruling to give a petitioner an opportunity to gather corroborating evidence. On appeal, Sun argues that an IJ must give a petitioner notice and an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required, relying on the Ninth Circuit’s decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011). We conclude that the REAL ID Act is ambiguous on this point, and that the BIA’s interpretation of the statute is reasonable and entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly, we deny the petition for review.

ANOTHER KEY QUOTE:

Moreover, the test is not whether the Ninth Circuit’s interpretation is plausible or “better” than the agency’s, as Sun suggests. Pet. Br. at 21. Rather, the test is whether the statute is “silent or ambiguous” and if so, then whether “‘the agency’s answer is based on a permissible construction of the statute,’ which is to say, one that is ‘reasonable,’ not ‘arbitrary, capricious, or manifestly contrary to the statute.'” Riverkeeper Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004) (quoting Chevron, 467 U.S. at 843-44).

**********************************************

So, here’s what Chevron really says:

“As long as the agency has a minimally plausible interpretation, we couldn’t care less if it’s the best interpretation of the law.”

But, why shouldn’t high-ranking Federal Judges who are being paid to tell us what the law is be required to opine on what is the “best” interpretation? What are they being paid for? Sure sounds to me like a “doctrine of judicial task avoidance.”

And, of course, given a choice of possible interpretations these days, the BIA almost invariably chooses that which is most favorable to DHS and least favorable to the respondent.

Why shouldn’t a respondent, particularly one seeking potentially life or death relief like asylum, have notice of what the Immigration Judge expects him to produce to corroborate his otherwise credible testimony? For Pete’s sake, even the “Legacy INS” and the USCIS, hardly bastions of due process, gave applicants for benefits the infamous “Notice of Intent to Deny” (“NID”) setting forth the evidentiary defects and giving the applicant an opportunity to remedy them before a final decision is made. Seems like a combination of fundamental fairness and common sense.

There now is a conflict between the Ninth and Second Circuits, both of which get lots of Petitions to Review final orders of removal. Consequently, the issue is likely to reach the Supremes, sooner or later. Interestingly, Justice Gorsuch was a critic of Chevron deference, specifically in immigration cases, when he was on the 10th Circuit. We’ll see how he treats Chevron now that he is in a position to vote to modify or overrule it.

Here’s my previous post on Justice Gorsuch and Chevron:

https://wp.me/p8eeJm-eT

PWS

02-25-18

BREAKING: SUPREMES BODY SLAM DOJ IN NATZ CASE — MISREPRESENTATION MUST BE “MATERIAL” — Maslenjak v. United States — Total Justices Voting For DOJ Position = 0 (ZERO)!

Here’s the Court’s Syllabus (NOT part of the decision);

SUPREME COURT OF THE UNITED STATES

Syllabus

MASLENJAK v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 16–309. Argued April 26, 2017—Decided June 22, 2017

Petitioner Divna Maslenjak is an ethnic Serb who resided in Bosnia during the 1990’s, when a civil war divided the new country. In 1998, she and her family sought refugee status in the United States. In- terviewed under oath, Maslenjak explained that the family feared persecution from both sides of the national rift: Muslims would mis- treat them because of their ethnicity, and Serbs would abuse them because Maslenjak’s husband had evaded service in the Bosnian Serb Army by absconding to Serbia. Persuaded of the Maslenjaks’ plight, American officials granted them refugee status. Years later, Maslenjak applied for U. S. citizenship. In the application process, she swore that she had never given false information to a government of- ficial while applying for an immigration benefit or lied to an official to gain entry into the United States. She was naturalized as a U. S. cit- izen. But it soon emerged that her professions of honesty were false: Maslenjak had known all along that her husband spent the war years not secreted in Serbia, but serving as an officer in the Bosnian Serb Army.

The Government charged Maslenjak with knowingly “procur[ing], contrary to law, [her] naturalization,” in violation of 18 U. S. C. §1425(a). According to the Government’s theory, Maslenjak violated §1425(a) because, in the course of procuring her naturalization, she broke another law: 18 U. S. C. §1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. The District Court instructed the jury that, to secure a conviction un- der §1425(a), the Government need not prove that Maslenjak’s false statements were material to, or influenced, the decision to approve her citizenship application. The Sixth Circuit affirmed the convic- tion, holding that if Maslenjak made false statements violating

2 MASLENJAK v. UNITED STATES Syllabus

§1015(a) and procured naturalization, then she also violated §1425(a).

Held:
1. The text of §1425(a) makes clear that, to secure a conviction, the

Government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. To “procure . . . naturalization” means to obtain it. And the adverbial phrase “contrary to law” speci- fies how a person must procure naturalization so as to run afoul of the statute: illegally. Thus, someone “procure[s], contrary to law, naturalization” when she obtains citizenship illegally. As ordinary usage demonstrates, the most natural understanding of that phrase is that the illegal act must have somehow contributed to the obtain- ing of citizenship. To get citizenship unlawfully is to get it through an unlawful means—and that is just to say that an illegality played some role in its acquisition.

The Government’s contrary view—that §1425(a) requires only a vi- olation in the course of procuring naturalization—falters on the way language naturally works. Suppose that an applicant for citizenship fills out the paperwork in a government office with a knife tucked away in her handbag. She has violated the law against possessing a weapon in a federal building, and she has done so in the course of procuring citizenship, but nobody would say she has “procure[d]” her citizenship “contrary to law.” That is because the violation of law and the acquisition of citizenship in that example are merely coincidental: The one has no causal relation to the other. Although the Govern- ment attempts to define such examples out of the statute, that effort falls short for multiple reasons. Most important, the Government’s attempted carve-out does nothing to alter the linguistic understand- ing that gives force to the examples the Government would exclude. Under ordinary rules of language usage, §1425(a) demands a causal or means-end connection between a legal violation and naturaliza- tion.

The broader statutory context reinforces the point, because the Government’s reading would create a profound mismatch between the requirements for naturalization and those for denaturalization: Some legal violations that do not justify denying citizenship would nonetheless justify revoking it later. For example, lies told out of “embarrassment, fear, or a desire for privacy” (rather than “for the purpose of obtaining [immigration] benefits”) are not generally dis- qualifying under the statutory requirement of “good moral charac- ter.” Kungys v. United States, 485 U. S. 759, 780; 8 U. S. C. §1101(f)(6). But under the Government’s reading of §1425(a), any lie told in the naturalization process would provide a basis for rescinding citizenship. The Government could thus take away on one day what

Cite as: 582 U. S. ____ (2017) 3

Syllabus

it was required to give the day before. And by so unmooring the rev- ocation of citizenship from its award, the Government opens the door to a world of disquieting consequences—which this Court would need far stronger textual support to believe Congress intended. The stat- ute Congress passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturaliza- tion process, but only when that act played some role in her naturalization. Pp. 4–9.

2. When the underlying illegality alleged in a §1425(a) prosecution is a false statement to government officials, a jury must decide whether the false statement so altered the naturalization process as to have influenced an award of citizenship. Because the entire naturalization process is set up to provide little room for subjective pref- erences or personal whims, that inquiry is properly framed in objec- tive terms: To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.

If the facts the defendant misrepresented are themselves legally disqualifying for citizenship, the jury can make quick work of that inquiry. In such a case, the defendant’s lie must have played a role in her naturalization. But that is not the only time a jury can find that a defendant’s lies had the requisite bearing on a naturalization decision, because lies can also throw investigators off a trail leading to disqualifying facts. When relying on such an investigation-based theory, the Government must make a two-part showing. Initially, the Government must prove that the misrepresented fact was suffi- ciently relevant to a naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation. Kungys, 485 U. S., at 774, n. 9. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. The Government need not show definitively that its investiga- tion would have unearthed a disqualifying fact. It need only estab- lish that the investigation “would predictably have disclosed” some legal disqualification. Id., at 774. If that is so, the defendant’s mis- representation contributed to the citizenship award in the way §1425(a) requires. This demanding but still practicable causal standard reflects the real-world attributes of cases premised on what an unhindered investigation would have found.

When the Government can make its two-part showing, the defend- ant may overcome it by establishing that she was qualified for citizenship (even though she misrepresented facts that suggested the opposite). Thus, whatever the Government shows with respect to a

MASLENJAK v. UNITED STATES Syllabus

thwarted investigation, qualification for citizenship is a complete defense to a prosecution under §1425(a). Pp. 10–15.

3. Measured against this analysis, the jury instructions in this case were in error. The jury needed to find more than an unlawful false statement. However, it was not asked to—and so did not—make any of the necessary determinations. The Government’s assertion that any instructional error was harmless is left for resolution on remand. Pp. 15–16.

821 F. 3d 675, vacated and remanded.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. ALITO, J., filed an opinion concurring in the judgment.

************************************************

Interestingly, Justice Gorsuch, in his first immigration-related decision, wrote a separate concurring opinion agreeing with the majority that a misrepresentation must be “material” but indicating that he would not have gone on to attempt to articulate a test for “materiality.”

Doubt that the Government’s max-enforcement effort in the Federal Courts is out of touch with reality and the law? Try this: With a supposedly conservative majority Supreme Court, the Gov has lost two recent cases this one and Esquivel-Quintana v. Sessions(http://immigrationcourtside.com/2017/05/31/led-by-justice-thomas-unanimous-supremes-reject-usgs-attempt-to-deport-mexican-man-for-consensual-sex-with-a-minor-strict-interpretation-carries-the-day/) by a total vote of 17-0. Yes, that’s right, 17-0! Not one Justice has sided with any of the nonsense that the Solicitor General has advanced on behalf of Government overreach on immigration enforcement. Justice Thomas even wrote the unanimous opinion in Esquivel (Justice Gorsuch sat that one out).

And, remember that these were positions developed and defended by the DOJ under the Obama Administration.

PWS

06-22-17

Congrats to all involves, and Due Process Forever!

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🇺🇸⚖️🗽Due Process Forever!

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