Category Archives: immigration

INS v. Pangilinan

486 U. S. 875

June 17, 1988

In 1942, Congress passed a law that made it really easy for Filipino veterans to get naturalized. The law explicitly said that you had to apply before the end of 1946 though. Furthermore, there was a period of several months from late 1945 to mid 1946 when applications were not being accepted. Several Filipinos tried to take advantage of this law decades after the fact. And the 9th Circuit ruled in their favor, ordering naturalization as a matter of equity.

The Supreme Court unanimously slapped down this nonsense (Kennedy did not participate). Scalia observed that the Constitution gave Congress the power to set all rules of naturalization. The 1942 law was brutally explicit that you had to apply before the end of 1946. This equitable power that the 9th Circuit relied upon had quite simply no authority to override the clear command of a Congressional statute. They were being blatant activists. Scalia was not moved by the fact that applications were not accepted for a period of several months, and noted that there was ample opportunity both before and after the gap to have made an application. He also briefly rejected some even more ridiculous arguments. Blackmun did not join the majority opinion, but silently concurred in judgment.

As a lower court, you know you’re acting lawlessly when even Brennan and Marshall are forced to admit it. What the 9th Circuit did in this case was shameful and disgraceful. When judges so brazenly ignore the statutory law, I dare say impeachment and removal are warranted. Judicial oaths to rule in accordance with the Constitution have to mean something.

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Kungys v. United States

485 U. S. 759

May 2, 1988

A man named Juozas Kungys lied several times about his biography when applying for a visa, and later when applying for citizenship. When this came to light decades later (together with the suggestion that he might have been a Nazi criminal), a denaturalization process was begun. At issue was whether his biographical lies were “material” for the procurement of naturalization, and whether the lies were sufficient to show bad moral character – in either event, his citizenship could then be revoked.

With Kennedy not participating, there was a confusing tangle of opinions. Scalia, had a majority for two points, joined by Rehnquist, Brennan, White, and O’Connor. First, by looking at the standards and definitions from the perjury context, Scalia held that lies were “material” if they had a natural tendency to influence the decisions of the naturalization decisionmakers. Second, lies need not be “material” to show bad moral character, because the plain language of the statute did not require it. While a similar statute had previously been interpreted to require that lies be “material,” it contained the word “misrepresentation,” which Scalia said was shorthand for material lies. Scalia hastened to add that, according to government policy, lies (whether material or immaterial) only showed bad character if they were made with the exact purpose of gaining immigration benefits.

In a portion joined by only Rehnquist, Brennan, and O’Connor, Scalia said that the case needed to be remanded to determine whether or not Kungys had lied for the exact purpose of gaining immigration benefits. This effectively became the Court’s final judgment on the matter. In a portion joined by only Rehnquist and Brennan, he said that the biographical lies were irrelevant enough to be immaterial. He also contended that if material lies are made, and citizenship is subsequently obtained, there is then a rebuttable presumption that the material lies procured the naturalization, which the naturalized person can then rebut through the preponderance of the evidence standard. Brennan, in a concurrence, emphasized that government would need to do a really thorough job in alleging that a material lie helped to procure naturalization.

Stevens, in an opinion joined by Marshall and Blackmun, found denaturalization a horrific punishment, and read the statutes to make it really hard. With reference to tort law, he interpreted “material” to mean that naturalization would not have been granted but for the lies. He also stressed that every single burden of proof in denaturalization cases should fall on the government. With respect to the requirement of good moral character, Stevens, by citing an analogous statute, contended that the lies would indeed need to be “material” (as he defined that word), to show bad moral character on the part of the applicant.

O’Connor, though joining most of Scalia’s opinion, wrote in a short dissent that the lies made by Kungys really were material. White, in his own dissent, was even more forceful that Kungys ought to be denaturalized. His long pattern of biographical lies, all made while trying to gain citizenship, clearly showed bad moral character. Furthermore, the lies were material because the immigration decisionmakers would surely have investigated more closely had they seen the change in biographical facts between the visa application and the citizenship application. White also expressed hope that the lower court, on remand, would look more seriously into the Nazi allegation.

… as I said, it’s an awful tangle of opinions and legal points. I hope I rarely have to write posts this long in the future.

INS v. Abudu

485 U. S. 94

March 1, 1988

A doctor from Ghana was ordered to be deported in 1982. In 1985, that Doctor moved to reopen the case, and asked for asylum because of alleged political persecution he would face back in Ghana. The Board of Immigration Appeals (BIA) denied his request, saying that Dr. Abudu had not even made a prima facie case for reopening. A Court of Appeals thought he had made a prima facie case, and ordered the BIA to reconsider. The BIA contended that their decisions could only be reviewed under an abuse-of-discretion standard, rather than the summary judgment standard that the Court of Appeals thought applicable.

Unanimously, the Court agreed with the BIA (Kennedy did not participate). The legal issue before the Court was very confused, and Justice Stevens spent most of the opinion trying to pin down exactly what was being decided. In the end, the ultimate final word was that BIA decisions about reopening or granting asylum were to be reviewed under an abuse-of-discretion standard, and under the facts of the case, discretion had clearly not been abused. This demanding standard was necessary, said Stevens, because there needs to be some finality in immigration adjudication. This was the correct ruling, but even so, I was surprised to see Brennan and Marshall concurring in it. I guess there are some cases where not even bleeding heart liberals can find a legal excuse to back the ‘underdog.’

United States v. Mendoza-Lopez

481 U. S. 828

May 26, 1987

Mendoza-Lopez was an illegal immigrant who was caught and deported. When he returned to the United States afterward, he was prosecuted on the felony charge of re-entering after deportation. Mendoza-Lopez sought to challenge the prosecution on the grounds that the original deportation had been unlawful, due to an uninformed waiver of his right to challenge the deportation. The question was whether an unlawful deportation could serve as a valid legal defense to the felony of returning after deportation.

The Court ruled 5-4 that this must be allowed as a valid defense. Marshall wrote the majority opinion, which admitted that the law in question did not actually discriminate in its text between lawful and unlawful deportations. Nonetheless, the majority held that due process required some opportunity to challenge an unlawful deportation. Marshall distinguished a prior case when an unlawful conviction was held not to matter. In that case, he said, judicial review was available elsewhere, but due to the waiver entered by Mendoza-Lopez, no other opportunity for judicial correction existed.

Rehnquist, joined by White and O’Connor, dissented. He did not think the original deportation procedures were in any way unlawful. At worst, all that went wrong was Mendoza-Lopez failing to understand certain privileges he retained, and that alone could not amount to some unconstitutional violation of due process. Scalia dissented too. He accepted for argument’s sake that the deportation was unlawful, but thought the majority had overstated the significance of the waiver. If that waiver really was made unknowingly, Scalia thought that he would be able to challenge it through some legal process. He also thought it was Constitutional to punish re-entry even if the original deportation was unlawful.

If a deportation truly is unlawful, I do think due process requires that this be a defense in a felony prosecution for re-entry. For the reasons described in the Rehnquist dissent though, I don’t think the deportation was unlawful in this case. Offhand, I would like to point out the sharp irony of immigrating to America in violation of its laws, and then protesting that your subsequent deportation was in violation of its laws. To be fair, it is true that God’s commands in the Torah place a moral obligation on America to welcome oppressed foreigners. Out of love for our neighbors, most immigration restrictions must be abolished. At the same time, it is still lawless hypocrisy to unrepentantly break a nation’s laws and then demand the protection provided by other laws of that nation. Until the day of legally open borders comes, immigrants and deporters alike should take care to avoid the easy sin of self-righteousness.

INS v. Cardoza-Fonseca

480 U. S. 421

March 9, 1987

After the Sandinista takeover of Nicaragua, Cardoza-Fonseca fled to America, fearing political persecution. When the INS tried to deport her, she made two arguments. First, federal law prohibited deportation when there existed “clear probability of persecution.” Second, federal law also allowed the Attorney General to grant asylum based on “well founded fear of persecution.” The “clear probability” standard was said to be based on a preponderance of the evidence (i.e. more likely than not). The Board of Immigration Appeals (BIA) said the standard of evidence for “well founded fear” was identical, and denied Cardoza-Fonseca’s claim that she had met that standard.

In a 6-3 ruling, the Court held that the two provisions of federal law had different standards, and that “well founded fear” was far less demanding than “clear probability.” Stevens wrote for the majority. Based on a purely textual examination, the two provisions appeared different, with the ‘fear’ section seeming to demand a subjective analysis, while the ‘probability’ section seemed more objective. Stevens proceeded to do a thorough review of legislative history, and stressed that the laws were passed to comply with a UN treaty. Finding that this supported the conclusion of separate standards, Stevens rejected the argument that the BIA’s interpretation should be entitled to Chevron deference. Here, the text and the intent of Congress was so clear that the BIA’s interpretation could be ignored. Blackmun wrote a concurrence to emphasize that the Court had not decided exactly what the “well founded fear” standard would be going forward.

Scalia concurred only in judgment. He thought the text alone was sufficient to decide the case, and agreed with the interpretation of the majority opinion. Then, in a preview of things to come, he complained about reliance on legislative history. Finally, he thought the majority had weakened Chevron deference by seeming to suggest that it could be overcome by resort to such legislative history. Powell dissented, and was joined by Rehnquist and White. He argued that the BIA’s methods of interpreting the two laws were far more nebulous¬† and far less rigid than the majority claimed – it was not a pure preponderance of the evidence standard. He also disputed all of the legislative history arguments put forth by Stevens. Finally, Powell pointed out that in the original Cardoza-Fonseca case, the BIA actually had analyzed her application for asylum under less stringent standards – meaning that even under the Supreme Court’s ruling, the BIA had arguably done nothing wrong.

Yet another case with odd political lines. You would think the conservatives would favor a refugee who had fled from the Sandinistas. In any event, in light of Powell’s discussion of the original BIA ruling, this decision does appear to be basically advisory. But then, advisory opinions really don’t bother me at all. And when it comes to interpretation, I’ll gladly take pure textual analysis over deference to an agency. I’m with the majority on this one.

INS v. Hector

479 U. S. 85

November 17, 1986

Virginia Hector was an illegal immigrant who arrived in America from Dominica in 1975. She was later joined by two nieces, who left their natural parents in Dominica in order to take advantage of America’s education system. Eventually, INS caught wind of this arrangement, and began proceedings to have Hector deported. Hector attempted to take advantage of a law that blocked deportation if, among other things, that deportation would cause hardship to a “spouse, parent, or child.” She argued that her relationship with her nieces was like a parent-child relationship, and thus her nieces ought to qualify under the act as children.

In a per curiam opinion, the Supreme Court summarily slapped down Hector’s argument. The statute defined the term “child” in excruciating detail, and the nieces patently did not qualify. In all honesty, it’s a wonder the case even got to the Supreme Court at all, so thoroughly was the law on the side of the INS. Even so, the vote was 7-2. Marshall, as always, objected to the Court issuing a decision without allowing the parties to present their cases. More surprisingly, Brennan maintained that the case should receive oral argument. Probably he felt empathy for the nieces, and was interested in looking for some out, however tenuous it would have been.