NYC Immigration Law Firm » Supreme Court Litigation

Supreme Court’s Decision in Flores-Villar v. United States

Thaker Berowitz LLP — Wed, 15 Jun 2011 14:28:14 +0000

In our September 22, 2010 blog post, we discussed the Supreme Court’s grant of certiorari in the case of Flores-Villar v. United States (09-5801), where it agreed to decide the question of whether children born overseas who have one U.S.-citizen parent can obtain U.S. citizenship if the citizen parent had been physically present in the U.S. for a certain period of time before the child’s birth. Specifically, under the applicable federal immigration law, if the citizen parent is the father, the period is five years; if it is the mother, the period is one year. The Court was to decide whether this differentiation violated the Equal Protection Clause of the United States Constitution. The lower court, the Ninth Circuit Court of Appeals, had concluded that the differentiation did not violate the Equal Protection Clause.

The Supreme Court heard oral arguments in the case in November of 2010.

On June 13, 2011, the Supreme Court issued a PER CURIAM split decision (4-4) in the case, in which it affirmed the Ninth Circuit’s decision finding no violation of the Equal Protection Clause. Justice Elena Kagan did not participate in the decision.

Supreme Court Upholds Arizona Immigration Law Punishing Employers Who Knowingly Hire Undocumented Workers

Thaker Berowitz LLP — Thu, 26 May 2011 16:34:42 +0000

On Thursday, the Supreme Court issued a ruling in which it backed Arizona immigration law that seeks to punish employers for knowingly hiring undocumented workers. The case is Chamber of Commerce v. Whiting, 09-115. The Court’s decision applies only to business licenses.

Arizona passed the Legal Arizona Workers Act in 2007, allowing the state to suspend the licenses of businesses that “intentionally or knowingly” violate work-eligibility verification requirements. Companies would be required under that law to use E-Verify, a federal database to check the documentation of current and prospective employees. That database had been created by Congress as a voluntary, discretionary resource. The U.S. Chamber of Commerce filed a lawsuit against the state, arguing federal law prohibits Arizona and other states from making E-Verify use mandatory.

By a 5-3 vote, the court said that federal immigration law gives states the authority to impose sanctions on employers who hire unauthorized workers. Writing for the majority, Chief Justice John Roberts said: “[The State of Arizona] relies solely on the federal government’s own determination of who is an unauthorized alien, and it requires Arizona employers to use the federal government’s own system for checking employee status.”

Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor disagreed and dissented. Justice Sotomayor noted that the E-verify program was voluntary and not mandatory. “Permitting states to make use of E-Verify mandatory improperly puts states in the position of making decisions … that directly affect expenditure and depletion of federal resources,” she wrote. Justice Breyer noted that employers “will hesitate to hire those they fear will turn out to lack the right to work in the United States.” Justice Elena Kagan did not participate in the case because she worked on it while serving as President Barack Obama’s solicitor general.

This decision is the first high court challenge to a variety of recent state laws cracking down on illegal immigrants. It remains to be seen how the Supreme Court will view a larger, more controversial state immigration law from Arizona.

Click here to read the Supreme Court’s decision in its entirety.

Keep checking back on our blog for more updates and information!

Sources: CNN, Washington Post and Supreme Court

Supreme Court to Decide §212(c) Waiver Issue

Thaker Berowitz LLP — Tue, 19 Apr 2011 19:18:40 +0000

On April 18, 2011, the U.S. Supreme Court agreed to hear an immigration case, where it will decide the following issue:

Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the Immigration and Nationality Act.

The case is Judulang v. Holder (10-694).

This appeal from a Ninth Circuit decision asks the Court to determine whether and how 212(c) relief applies to individuals in deportation proceedings (as opposed to inadmissibility proceedings).

Read a concise summary of the facts and procedural history of the case.

Oral argument date has not yet been set.

Keep checking back on our blog for more updates!

Flores-Villar v. United States – Supreme Court Oral Arguments

Thaker Berowitz LLP — Thu, 11 Nov 2010 15:30:50 +0000

In our September 22, 2010 blog post, we discussed that the U.S. Supreme Court would hold oral arguments on November 10, 2010, an interesting immigration case, Flores-Villar v. United States (09-5801). The issue presented by Flores-Villar was whether children born overseas who have one U.S.-citizen parent can obtain U.S. citizenship if the citizen parent had been physically present in the U.S. for a certain period of time before the child’s birth. If the citizen parent is the father, the period is five years; if it is the mother, the period is one year. Does this differentiation violate the Equal Protection Clause?

Yesterday, the Supreme Court heard oral arguments in this case. The decision, however, is not expected until summer of 2011.

Click here to read the transcript of the oral arguments from November 10, 2010.

Supreme Court to Decide Whether a Child’s Acquisition of Citizenship Based on the Different Requirements for Mother’s and Father’s Length of Residency Prior to Birth Violates the Constitution

Thaker Berowitz LLP — Wed, 22 Sep 2010 22:16:10 +0000

On November 10, 2010, the United States Supreme Court will hear oral arguments in the case of Flores-Villar v. United States (09-5801), where it must decide whether children born overseas who have one U.S.-citizen parent can obtain U.S. citizenship if the citizen parent had been physically present in the U.S. for a certain period of time before the child’s birth. If the citizen parent is the father, the period is five years; if it is the mother, the period is one year. Does this differentiation violate the Equal Protection Clause?

This case arose in the Ninth Circuit, where Ruben Flores-Villar raised a challenge under the Equal Protection Clause of the Fifth Amendment on the basis of age and gender requirements of two former laws under the Immigration and Nationality Act, 8 U.S.C. sections 1401(a)(7) and 1409 (1974), which required a 5-year residency requirements after the age of 14 for fathers, but only required 1-year residency requirement for mothers, before a child born abroad out of wedlock may be deemed to have acquired citizenship at birth. The Ninth Circuit court concluded that the differentiation in the gender and age requirements did not violate the Constitution.

We will keep you posted on the developments in this case after the oral arguments!

Supreme Court and Aggravated Felony – Decision in Carachuri-Rosendo v. Holder

Thaker Berowitz LLP — Mon, 14 Jun 2010 21:34:53 +0000

Today, the Supreme Court issued its decision in Carachuri-Rosendo v. Holder (No. 09-60), which presented the issue of whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.

The Supreme Court announced today that a second or subsequent simple possession offenses are not aggravated felonies under 8 U.S.C. §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction.

Carachuri-Rosendo v. Holder: Transcript of the Oral Arguments at the Supreme Court

Thaker Berowitz LLP — Wed, 31 Mar 2010 21:01:05 +0000

Today, the Supreme Court heard oral arguments in a very important case that will affect thousands of immigrants with criminal convictions in either a positive or a negative way (depending on what the court will decide).

Carachuri-Rosendo v. Holder (No. 09-60) presented the issue of whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.

The Supreme Court’s decision in this case will be very important for the immigrants who have been convicted for simple drug possession cases.

Click here to read the transcript of the oral arguments from today’s hearing at the Supreme Court on this case!

Criminal Defendants Entitled to Immigration Advice

Thaker Berowitz LLP — Wed, 31 Mar 2010 15:56:11 +0000

Today, the United States Supreme Court issued a decision in the case of Padilla v. Kentucky (No. 08-651), in which the Court announced that immigrants must be told by their lawyers whether pleading guilty to a crime could lead to their deportation.

The Court’s ruling came in the case of Jose Padilla, who was born in Honduras. He asked the Supreme Court to throw out his 2001 guilty plea to drug charges in Kentucky. Padilla asked his lawyer at the time whether a guilty plea would affect his immigration status and was told it wouldn’t. The lawyer was wrong, and because of that, Padilla faced deportation after living in the United States for more than 40 years as a lawful permanent resident.

Padilla argued that his criminal lawyer’s failure to tell him that his guilty plea could lead to deportation constituted a violation of his Sixth Amendment right to “effective assistance of counsel.”

Majority of the the Supreme Court justices agreed [Justice Alito and Chief Justice Roberts concurred; Justices Scalia and Thomas dissented].

“It is our responsibility under the Constitution to ensure that no criminal defendant – whether a citizen or not – is left to the ‘mercies of incompetent counsel,’” Justice John Paul Stevens said in writing for the Court. ”To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation,” Stevens wrote. “Our long-standing Sixth Amendment precedents, the seriousness of the deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.”

The Court sent the case back to the Supreme Court of Kentucky, which will decide whether Padilla’s guilty plea should be thrown out.

As this case demonstrates, it is critical for a non-citizen to discuss with an attorney any immigration consequences that may arise out of any criminal charges he or she may be facing. Ultimately, what a person pleads guilty to will determine whether any immigration consequences will follow. However, even convictions for minor offenses often lead to serious immigration consequences.

The criminal lawyer’s job is usually limited to getting the best possible outcome in criminal court — it is limited to getting someone out of jail, getting the charges reduced and having the client plead to a lesser charge, and reducing the jail time the client may face. If a criminal defense attorney does not know or understand the immigration consequences of the plea or the sentence, it could be disastrous for the client who is not a United States citizen. Therefore, even if the lawyer and the client think they have “won” in criminal court, serious immigration consequences, including permanent deportation, may follow.

While a criminal lawyer should be asking his or her client whether they are a United States citizen, most of the times, this does not happen. Thus, it becomes more important for the client to tell his or her lawyer that he or she is not a United States citizen and to ask what may happen if he or she accepts a certain plea and sentence. If the criminal lawyer does not know, then it is time to speak to a qualified immigration attorney (BEFORE pleading to anything)!

With the Supreme Court’s decision in Padilla v. Kentucky, we hope that more and more criminal defense attorneys will become aware that it is critical to learn whether their clients are United States citizens or not. If their clients are not citizens, hopefully, the criminal attorney will consult with immigration attorneys to see how best to proceed for the benefit of his or her clients. Otherwise, the lawyers may open themselves up to malpractice liability (especially in light of the Supreme Court’s decision today).

Supreme Court to Consider Whether Second Possession Conviction Constitutes an “Aggravated Felony”

Thaker Berowitz LLP — Fri, 22 Jan 2010 15:33:10 +0000

The Supreme Court will hear an immigration case addressing whether a second drug possession conviction qualifies as an aggravated felony under INA § 101(a)(43)(B) (“drug trafficking crimes”). The specific question before the Court is “Whether a person convicted under state law for simple drug possession (a federal law misdemeanor) has been ‘convicted’ of an ‘aggravated felony’ on the theory that he could have been prosecuted for recidivist simple possession (a federal law felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.”

The case is Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009), cert. granted, 2009 U.S. LEXIS 9024 (U.S. Dec. 14, 2009) (09-60).

Oral arguments will be held at the Supreme Court on March 31, 2010.

Click here to read court documents related to this case that led up to the Supreme Court.