Supreme Court Holds Fourteenth Amendment Guarantees Birthright Citizenship Regardless of Parents' Immigration Status

The Supreme Court has affirmed the unlawfulness of Executive Order 14160, which sought to deny citizenship to children born in the United States to parents unlawfully or only temporarily present in the country. The order had argued that such children are not "subject to the jurisdiction" of the United States within the meaning of the Fourteenth Amendment's Citizenship Clause.

The Court held that the Citizenship Clause codified the common-law rule of jus soli, under which any child born on American soil and not exempted by the narrow historical exceptions for children of foreign diplomats or members of sovereign Indian tribes is a citizen at birth, regardless of the parents' domicile or immigration status. Tracing the Clause's history from English common law through its adoption as a repudiation of Dred Scott, and relying on the Court's 1898 decision in United States v. Wong Kim Ark, the majority rejected the government's argument that only noncitizens domiciled in the United States could transmit "sufficient allegiance" to their children.

The full text of Trump v. Barbara can be found here: https://www.supremecourt.gov/opinions/25pdf/25-365_diff_ed9g.pdf

Supreme Court Upholds Metering at the Border

The Supreme Court has held that a noncitizen standing in Mexico who is prevented from crossing the border has not “arrived in the United States” for purposes of the INA’s inspection and asylum provisions. The case challenged the government’s metering policy, under which CBP limited the number of asylum seekers processed each day at U.S.-Mexico land ports of entry.

The Court concluded that “arrives in the United States” requires physical entry into the country. Because the plaintiffs had not crossed into the United States, the INA did not require inspection or allow them to apply for asylum based solely on their presence at the border in Mexico. The Court reversed the Ninth Circuit and remanded.

The full text of Mullin v. Al Otro Lado can be found here: https://www.supremecourt.gov/opinions/25pdf/25-5_86qd.pdf

Supreme Court Allows Returning LPR to Be Treated as Applicant for Admission Based on Commission of CIMT

The Supreme Court has held that the government need not have clear and convincing evidence at the border that a returning lawful permanent resident committed a crime involving moral turpitude before treating him as seeking admission under 8 USC 1101(a)(13)(C)(v). The respondent, a lawful permanent resident, temporarily traveled abroad while a New Jersey trademark-counterfeiting charge was pending and was paroled into the United States on return.

The Court held that the government’s burden is satisfied in the later removal proceedings, not necessarily at the port of entry. The respondent’s later guilty plea supplied the necessary proof that he had committed the offense for purposes of the admission classification. The Court vacated the Second Circuit’s decision and remanded, leaving unresolved whether the trademark-counterfeiting conviction is a CIMT.

The full text of Blanche v. Lau can be found here: https://www.supremecourt.gov/opinions/25pdf/25-429_h3ci.pdf

Supreme Court Applies Deferential Standard of Review to Past Persecution Determinations

The Supreme Court has determined that a federal court reviewing the agency’s determination that an asylum applicant did suffer serious enough harm to qualify as past persecution must apply the deferential substantial evidence standard. The Court clarified that the standard applies to both the review of the correctness of the underlying factual findings as well as the question as to whether these findings meet the legal definition of persecution.

“Our decisions in Wilkinson v. Garland, 601 U. S. 209 (2024), and Guerrero-Lasprilla v. Barr, 589 U. S. 221 (2020), are not to the contrary. In those cases, we held that a mixed question of law and fact could qualify as a ‘question of law’ exempt from §1252(a)’s bar on judicial review. But unlike §1252(b), §1252(a) does not speak to the standards of review for removal orders; rather, it addresses a court’s ability to review removal orders at all. As a result, whether a given issue is treated as a question of law exempt from the INA’s jurisdiction-stripping provisions tells us nothing about the type of review the court must afford to that issue under other provisions of the statute.”

The full text of Urias-Orellana v. Bondi can be found here: https://www.supremecourt.gov/opinions/25pdf/24-777_9ol1.pdf

Supreme Court Discusses Timing for PFR in Withholding Only Cases

The Supreme Court has determined that the 30-day petition for review deadline is not jurisdictional, but rather, a claims processing rule. In cases involving administrative removal orders (and likely also reinstatement orders), the 30 day timeliness is measured from the issuance of the ICE order, rather than from any dismissal of withholding and CAT applications by the Board of Immigration Appeals. “An order denying relief under the CAT is not a final order of removal and does not affect the validity of a previously issued order of removal or render that order non-final.”

In terms of how a non-citizen will be able to get review of the denial of withholding and CAT, the Supreme Court suggested the following: “the Government can inform aliens of the need to file a petition within 30 days after the issuance of a FARO, and it can alert the court of appeals to the pendency of a withholding-only proceeding so that review there can wait until that issue is decided. And if requests for withholding of removal in cases like Riley’s are decided expeditiously—and that was the whole point of the supposedly streamlined procedure adopted by Congress to effect the quick removal of dangerous aliens—petitions for review of removal orders should not linger long on a court of appeals docket before the withholding issue is ready for review. Finally, if Government makes a general practice of what it has done in Riley’s case, i.e., declining to press for enforcement of the 30-day filing rule, aliens who are mistaken about when a petition for review must be filed will not be hurt.”

The full text of Riley v. Bondi can be found here:

https://www.supremecourt.gov/opinions/24pdf/23-1270_new_3dq3.pdf

Supreme Court Limits the Use of Universal Injunctions

The Supreme Court has severely curtailed the use of universal injunctions, finding them to exceed the equitable goal of providing complete relief to the party to a lawsuit.

The full text of Trump v. CASA can be found here:

https://www.supremecourt.gov/opinions/24pdf/24a884_new_5426.pdf

Supreme Court Construes Voluntary Departure Deadline

The Supreme Court has determined that if the 60th day of a voluntary departure period falls on a weekend, the deadline to depart is extended to the next business day.

The full text of Monsalvo Velazquez v. Bondi can be found here:

https://www.supremecourt.gov/opinions/24pdf/23-929_h3ci.pdf

SCOTUS Finds that Bodily Harm Caused by Omission still Requires Force

The Supreme Court has determined that a conviction that requires the infliction of bodily harm through an omission still requires the type of intentional violent force required by the definition of a crime of violence.

The full text of Delligatti v. United States can be found here:

https://www.supremecourt.gov/opinions/24pdf/23-825_q713.pdf

SCOTUS Determines that Revocation of Visa Petition Approvals are not Challengeable in Federal Court

The Supreme Court has determined that federal courts lack jurisdiction to review the agency’s revocation of an approved visa petition. In so doing, the Court indicated that the revocation statute defines a purely discretion decision by the agency - that the agency is not obligated to revoke the approval of a petition that was approved in error.

The full text of Bouarfa v. Mayorkas can be found here:

https://www.supremecourt.gov/opinions/24pdf/23-583_onjq.pdf

Supreme Court Finds Chevron Deference Incompatible with APA

The Supreme Court has determined that Chevron deference - a doctrine that accords deference to certain agency interpretations of statutes - is incompatible with the Administrative Procedure Act. “Chevron defies the command of the APA that ‘the reviewing court’—not the agency whose action it reviews—is to ‘decide all relevant questions of law and interpret statutory provisions.”

The full text of Lopez Bright v. Raimondo can be found here:

https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf

Supreme Court Finds that US Citizen has not Protected Liberty Interest in Spouse's Visa

The Supreme Court has determined that a U.S. citizen does not a protected liberty interest in the adjudication of her spouse’s visa application, and thus, cannot use the procedural due process clause to obtain federal court review of the denial of that application. This decision may (sadly) close the door to one of the very few opportunities to obtain judicial review of visa denials in federal court and appears to be a whole hearted embrace by the Supreme Court of the doctrine of consular nonreviewability.

Apart from the legal reasoning in the opinion, the outcome seems out of step with the Biden Administration’s recent emphasis on family reunification, which is noteworthy as the Solicitor General, not Mrs. Munoz, sought Supreme Court review in this matter. In addition, just one week later, the Supreme Court issued its decision in Lopez Bright Enterprises, which emphasizes the role of federal courts in statutory interpretation and review of agency decisions under the Administrative Procedure Act. The Munoz and Loper Bright decisions seem philosophically at odds with one another.

The full text of Department of State v. Munoz can be found here:

https://www.supremecourt.gov/opinions/23pdf/23-334diff_q8l1.pdf

Supreme Court Finds that Incomplete NTA does not Preclude Issuance of In Absentia Order

The Supreme Court has determined that an Immigration Judge may order removed in absentia a non-citizen who received a Notice to Appear lacking the time and date of his first hearing, if the Immigration Court subsequently mailed a notice of hearing to the individual with that information.

The full text of Campos-Chaves v. Garland can be found here:

https://www.supremecourt.gov/opinions/23pdf/22-674_bq7d.pdf

Supreme Court Finds Hardship Determinations are Reviewable in Federal Court

The Supreme Court has determined that the “exceptional and extremely unusual hardship” standard in non-LPR cancellation of removal cases is a mixed question of fact and law, subject to federal court review. “The facts underlying any determination on cancellation of removal therefore remain unreviewable. For instance, an IJ’s factfinding on credibility, the seriousness of a family member’s medical condition, or the level of financial support a noncitizen currently provides remain unreviewable. Only the question whether those established facts satisfy the statutory eligibility standard is subject to judicial review. Because this mixed question is primarily factual, that review is deferential.”

The full text of Wilkinson v. Garland can be found here:

https://www.supremecourt.gov/opinions/23pdf/22-666diff_f2bh.pdf

SCOTUS Construes Obstruction of Justice Aggravated Felony Ground

The Supreme Count has determined that the a conviction may constitute an obstruction justice aggravated felony even if the offense does not require that an investigation or proceeding be pending.

The full text of Pugin v. Garland can be found here:

https://www.supremecourt.gov/opinions/22pdf/22-23_d18e.pdf

SCOTUS Finds States had no Standing to Sue over DHS Enforcement Priorities

The Supreme Court has determined that Texas and Louisiana have no standing to challenge the Department of Homeland Security’s immigration enforcement priorities memo.

The full text of US v. Texas can be found here:

https://www.supremecourt.gov/opinions/22pdf/22-58_i425.pdf

Supreme Court Interprets Exhaustion Requirement

The Supreme Court has determined that the exhaustion requirement in 8 USC 1252(d)(1) is a claims processing rule, not a jurisdictional bar. Thus, a party can forfeit or waive an objection to exhaustion. In addition, the Court found that the statute does not require the filing of a motion to reconsider with the Board of Immigration Appeals to give the agency to correct legal errors before filing a petition for review of those errors in federal court. Motions to reopen and reconsider are not remedies of right, and the exhaustion requirement only requires an appellant to seek remedies of right.

The full text of Santos Zacaria v. Garland can be found here: https://www.supremecourt.gov/opinions/22pdf/21-1436_n6io.pdf

SCOTUS Permits Termination of MPP

The Supreme Court has determined that the federal government has the authority to terminate the Migrant Protection Protocols, finding that “the contiguous-territory return authority in section 1225(b)(2)(C) is discretionary.”

The full text of Biden v. Texas can be found here:

https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf

SCOTUS Finds No Statutory Requirement for Prolonged Detention Bond Hearings for Non-Citizens Subject to Reinstatement

The Supreme Court has determined that there is no statutory requirement to provide a bond hearing to an individual subject to a reinstated order of removal. The Court left open the possibility that such hearings might be required by the Constitution.

The full text of Johnson v. Arteaga-Martinez can be found here:

https://www.supremecourt.gov/opinions/21pdf/19-896_2135.pdf

SCOTUS Prohibits Classwide Injunctions of Mandatory Detention Provisions

The Supreme Court has determined that 8 USC 1252(f)(1) prohibits the issuance of classwide injunctions by federal courts (other than the Supreme Court) that enjoin certain provisions of the INA, including the mandatory detention provisions.

The full text of Garland v. Aleman Gonzalez can be found here:

https://www.supremecourt.gov/opinions/21pdf/20-322_m6hn.pdf

SCOTUS Eliminates Review of Factual Determinations Connected to Discretionary Relief

The Supreme Court has determined that federal courts lack jurisdiction to consider challenges to the agency’s factual findings in connection with certain types of discretionary relief (such as adjustment of status). Perhaps worse, both the majority and the dissent recognize that this decision will likely foreclose any review of denials of adjustment of status (including those denied based on legal determinations, rather than factual findings) outside of the removal context.

As the dissent recognizes, this is a terrible decision that effectively leaves applicants with no way to correct agency errors.

The full text of Patel v. Garland can be found here:

https://www.supremecourt.gov/opinions/21pdf/20-979_h3ci.pdf