Reviewing deportation decisions based on persecution or torture risk
RELIST WATCH
The Supreme Court took a lot of actions on relisted case since our last installment. The Supreme Court granted review to three cases involving the proper venue for challenging certain types of Environmental Protection Agency decision, as well as a case that addressed the factors a judge can consider in revoking the defendant’s term on supervised release and ordering him or her incarcerated. The court denied review of a relisted case that involved the constitutionality of restrictions placed on the president’s power to remove commissioners from the Consumer Product Safety Commission. The court also denied review in a case that asked whether the takings provision is violated if the reason for taking a property is to block an owner’s plans for a different use, even though Justices Clarence Thomas and Neil Gorsuch voted for review.
All of the other relisted cases were relisted. Hamm v. Smith, which was relisted 23 times, became the most relisted case of all time – or, at least, the most relisted in the 15 years that I have been closely monitoring relists. Hamm was relisted for the first time after the Jan. 5 2024 conference. The court rescheduled this case five times earlier. Just over a year ago, the case was distributed for a conference on Oct. 27, 2023. I don’t know what is taking so much time, but I can imagine that whatever is going on is very interesting. Hamm dethroned the previous relisting king, Ryan V. Hurles. This case had 22 relists in just over 10 years. Three cases have been relisted: Riley v. Garland; Martinez v. Garland; and Sanchez v. Garland. All three cases deal with the same fundamental issue of immigration law. U.S. Immigrations and Customs Enforcement may reinstate a deportation order if a noncitizen reenters after being deported. Noncitizens can resist deportation by demonstrating they will be tortured or persecuted if sent to that country. Noncitizens who have a reasonable fear of being deported to a particular country can enter judicial proceedings to prevent them from being sent there (but still be allowed to go to another country that will accept them). The decision of the asylum officer to reinstate the deportation can be reviewed by a federal immigration judge. Their ruling is then reviewed by the Board of Immigration Appeals. Finally, the regional federal appeals court reviews the Board of Immigration Appeals’ ruling. The review provision states that the noncitizen’s “petition for review must be filed not later than 30 days after the date of the final order of removal.”
There are two circuit splits here. Two appeals courts have ruled that the 30-day period begins when the asylum officer determines that the prior deportation order should be reinstated, well before the immigration judge’s review. But two appeals courts have held that the 30-day period runs from when the asylum officer determines that the prior deportation order should be reinstated, well before the immigration judge’s review.
Second: The courts of appeals are divided about whether the 30-day limit is a constraint that they are powerless to disregard, or if it is instead simply a “claims processing rule” to which exceptions can sometimes be made.
The government concedes that the there are splits on both issues, and it argues that the noncitizens here are correct both that the 30-day period runs from BIA’s final affirmance and that it is a claims processing rule subject to exceptions. The government says that it does not need to grant a review because the Harrow v. Department of Defense decision held that a similar deadline was not jurisdictional. It noted that “most time bars are not jurisdictional” even when “framed in mandatory terms.” The government maintains that it would suffice to grant the petitions and vacate the adverse judgments of the lower court of appeals and remand the case for further consideration based on Harrow. We should hear more soon. Tune in next time!
New Relists
Riley v. Garland, 23-1270
Issues
: (1) Whether 8 U.S.C. SS 1252(b)(1)’s 30-day deadline is jurisdictional, or merely a mandatory claims-processing rule that can be waived or forfeited; and (2) whether a person can obtain review of the Board of Immigration Appeals’ decision in a withholding-only proceeding by filing a petition within 30 days of that decision.
(Relisted after the Oct. 18 conference. )
Martinez v. Garland, 23-7678
Issues
: (1) Whether 8 U.S.C. SS 1252(b)(1)’s 30-day deadline runs from the end of any fear-based proceedings, rather than the date when a reinstatement order is entered and fear-based proceedings can begin; and (2) whether Section 1252(b)(1)’s 30-day deadline is a claim-processing rule rather than a jurisdictional limit.
(Relisted after the Oct. 18 conference.)
Sanchez v. Garland, 24-11
Issue: Whether federal courts of appeals have jurisdiction to review a denial by the Board of Immigration Appeals of withholding-only relief.
(Relisted after the Oct. 18 conference. )
Returning Relists
Hamm v. Smith, 23-167Issues:
(1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(Relisted after the Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, March 1, March 15, March 22, March 28, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, July 1, Sept. 30, Oct. 11 and Oct. 18 conferences. )
Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston, 23-1137Issue
: Whether an equal protection challenge to facially race-neutral admission criteria is barred simply because members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool.
(Relisted after the Sept. 30, Oct. 11 and Oct. 18 conferences. )
G-Max Management, Inc. v. New York, 23-1148
Issues: (1) Whether New York’s rent-regulation laws, and in particular its new restrictions on owner reclamation and condo/co-op conversions, effect physical takings; and (2) whether this court should overrule Penn Central Transportation Co. v. City of New York, or at least clarify the standards for determining when a regulatory taking occurs.
(Relisted after the Sept. 30, Oct. 11 and Oct. 18 conferences. )
Kerr v. Planned Parenthood South Atlantic, 23-1275
Issues: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30, Oct. 11 and Oct. 18 conferences. )
Andrew v. White, 23-6573
Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11 and Oct. 18 conferences. )
Gordon v. Massachusetts, 23-7150
Issues: (1) Whether the confrontation clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute forensic expert conveying testimonial statements of a non-testifying forensic analyst on the grounds that the testifying expert offers a purportedly “independent opinion;” and (2) whether the Sixth Amendment right to counsel precludes a criminal defendant’s trial counsel from suggesting to a jury that trial counsel does not believe the testimony of the defendant.
(Relisted after the Sept. 30 and Oct. 11 conferences. )
Wilson v. Hawaii, 23-7517
Issue: Whether the test of New York State Rifie & Pistol Association, Inc. v. Bruen determines when a state’s criminal prosecution for carrying a handgun without a license violates the Second Amendment.
(Relisted after the Sept. 30, Oct. 11 and Oct. 18 conferences. )
Building and Reality Institute of Westchester and Putnam Counties, Inc. v. New York, 23-1220
Issue: Whether the changes made by New York’s Housing Stability and Tenant Protection Act effect physical takings, and as applied takings, and violate both the due process and contract clauses of the Constitution.
(Relisted after the Oct. 11 and Oct. 18 conferences. )
Smith v. Stillie, 23-1316
Issues: (1) Whether Alaska’s requirement that individual donors must file duplicative reports of their political contributions within 24 hours of making them violates the First Amendment; and (2) whether Alaska’s extensive on-ad disclosure requirements violate the First Amendment.
(Relisted after the Oct. 11 and Oct. 18 conferences. )
Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7
Issues: (1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.
(Relisted after the Oct. 11 and Oct. 18 conferences. )
Ohio v. Environmental Protection Agency, 24-13
Issue: Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.
(Relisted after the Oct. 11 and Oct. 18 conferences.)
Louisiana v. Callais, 24-109
Issues: (1) Whether the majority of the three-judge district court in this case erred in finding that race predominated in the Louisiana legislature’s enactment of S.B. The issues:
(1) Whether the majority of the three-judge district court in this case erred when it found that race predominated in Louisiana’s legislature’s enactment of S.B. The majority should have subjected S.B. 8 to the preconditions specified in Thornburg v. Gingles; and (4) whether this action is non-justiciable.
(Relisted after the Oct. 11 and Oct. 18 conferences. )
Robinson v. Callais, 24-110Issues:
(1) Whether the three-judge district court erred in concluding that race predominated in the design of Louisiana’s Congressional District 6 based on the state legislature’s stated intent to comply with the rulings of Robinson v. Ardoin without presuming the good faith of the legislature, attempting to disentangle the legislature’s racial and political considerations, or requiring an alternative map that satisfied both Section 2 of the Voting Rights Act and the legislature’s political objectives, as required by Alexander v. S.C. State Conference of NAACP; (2) whether the district court erred when it disregarded the rulings of the courts in Robinson that preconditions specified in Thornburg v. Gingles could be (and had been) satisfied and instead required that the state’s enacted map satisfy the first Gingles precondition to survive strict scrutiny; (3) whether the district court erred in failing to accord the Louisiana Legislature sufficient breathing room to account for political considerations that resulted in a less compact district than necessary to satisfy Section 2 of the Voting Rights Act; (4) whether the district court erred in relying on extrarecord evidence and ignoring the evidence in the record on S.B. The issues are:
(1) Whether the three-judge district court erred in concluding race predominated in the design of Louisiana’s Congressional District 6 based on the state legislature’s stated intent to comply with the rulings of Robinson v. Ardoin without presuming good faith, attempting to disentangle racial and political considerations or requiring an alternative map that satisfied both Section 2 of Voting Rights Act and a legislature’s political 8 failed to satisfy strict scrutiny; and (5) whether the district court abused its discretion by unnecessarily expediting the proceedings and limiting the evidence presented in this complex, fact-intensive case.
(Relisted after the Oct. 11 and Oct. 18 conferences. )
