Justice Scalia’s Crimmigration Legacy

Andrea Sáenz Supreme Court Justice Antonin Scalia’s recent passing has spurred a wealth of commentary about his career and legal philosophy, including the recognition that the legendary conservative jurist issued a number of rulings sympathetic to criminal defendants [see here, here, or here]. What have attracted less notice so far are his consistent votes for noncitizens in cases involving the immigration consequences of criminal convictions, or for defendants in cases involving the sentencing consequences of prior convictions. In both types of cases, Scalia was an extremely reliable vote [...]

Categorical approach returns to Supreme Court

By Nicholas Anderson and Linus Chan The Supreme Court’s decision on Tuesday to grant cert in the Texas v. United States case has gotten quite a bit of deserved attention among the media, pundits, and immigration advocates and scholars. However, crimmigration nerds should be paying attention to a different Supreme Court cert. grant on the same day. Despite not featuring an immigrant or even immigration law directly, United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015) (docket number 15-6092), will have a significant impact on anyone facing removal from the United States based on a [...]

Immigration Arrests Violate the Fourth Amendment

By Michael Kagan The manner in which Immigration and Customs Enforcement (ICE) takes people into custody at the outset of removal proceedings fails to meet the constitutional requirements for seizure of a person under the Fourth Amendment. In other words, immigration arrests are unconstitutional. This may seem like an ambitious argument because it would upend the manner by which federal authorities have enforced immigration law since the 19th Century. But the constitutional analysis is in in fact quite simple. Indeed, the constitutional problems with immigration arrests are so [...]

Supreme Court hears crimmigration arguments today

Today the U.S. Supreme Court will hear oral arguments in the latest in its constant stream of crimmigration cases. As with many other Supreme Court crimmigration decisions, Torres v. Lynch, No. 14-1096 (U.S.), requires the Court to untangle the aggravated felony basis of removal. In particular, Torres concerns the aggravated felony category concerning arson crimes. Stemming from a decision of the U.S. Court of Appeals for the Second Circuit affirming a BIA decision, Torres hones in on the precise meaning of the phrase “described in” which appears in several subsections of the sprawling [...]

The “ordinary” case’s demise in criminal sentencing & its implications for immigration law

By Linus Chan When Congress passed the Armed Career Criminal Act (ACCA) of 1984, federal courts needed to systematically decide what state convictions required sentencing enhancements designed to punish not only “habitual criminals” but “violent” offenders as well with higher sentences. Congress, however, didn’t define what makes for a violent offense and the lower courts were torn: did Congress mean for state law to govern or was a uniform, nationwide definition to apply? In 1990, the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), decided that a uniform definition was [...]

Litigating Mellouli: Adventures in Team Whack-a-Mole

By Kate Evans In Mellouli v. Lynch, the Supreme Court reached what may now look like an inevitable result when, for the fourth time in a decade, it rejected an attempt by the government to deport a lawful permanent resident for a minor drug offense using the categorical approach. But the case did not start out that way. Rather, the straightforward requirement that “the Government must connect an element of the alien’s conviction” to a federally controlled substance, slip op. at 14, came only as the result of a far-reaching collaboration to winnow down the case. Editor's Note: This essay is [...]

Mellouli in the context of the modern deportation system

By Jason Cade On Wednesday, Jennifer Koh noted that Mellouli v. Lynch, 575 U.S. --- (2015), marks the fourth time in ten years that the federal government has zealously litigated the application of harsh removal provisions to lawfully present noncitizens with minor drug convictions all the way to the Supreme Court, only to lose. For my contribution to this online symposium, I’d like to put the Mellouli decision into an even broader context. My thoughts here draw on ideas that I am developing in a forthcoming article, entitled Enforcing Immigration Equity, to be published later this year in [...]

High Court Finds Government a Four-Time Loser

By Sejal Zota In Mellouli v. Lynch, No. 13-1034, slip op. (June 1, 2015), the Supreme Court returned a measure of sanity to the government’s deportation rules. For the fourth time in a decade the Supreme Court overwhelmingly rejected the government’s use of the nation's immigration laws to deport an individual with a minor drug conviction. Unfortunately, thousands of families were already separated from their spouses, children, parents, and siblings by the time our high court could intervene. Editor's Note: This essay is part of an online symposium about Mellouli on crImmigration.com [...]