The National Law Forum

The Blog of the The National Law Review

SCOTUS Grants Certiorari to Two Immigration-Based Cases for 2015 Term: Will the Government Have to Explain Its Exercise of “Discretion”?

Greenberg Traurig Law firm

The United States Supreme Court is back in session as of last Monday, Oct. 6—often referred to as “First Monday” due to the fact that the term must begin on the first Monday of October by law. Among its roughly 50 case docket, featuring headliners that will refine Fourth Amendment jurisprudence and agency regulatory authority, the Justices will tackle two cases that stand to have a considerable impact on American immigration law and procedure.

The first of those cases, Mellouli v. Holder, concerns the issue of whether a noncitizen—even a green card holder—can be mandatorily detained and deported for possessing drug paraphernalia.Section 237(a)(2)(B)(i) of the Immigration and Nationality Act broadly authorizes the deportation of noncitizens that find themselves caught up in charges related to a “controlled substance.” Currently, the circuits are split as to whether the drug paraphernalia itself, the possession of which is prohibited by some states, must be related to a substance listed in Section 802 of Title 21, the Controlled Substances Act, in order to properly form the basis of a deportation order under the immigration laws.

The defendant, Moones Mellouli, is a lawful permanent resident who earned two master’s degrees and worked as an actuary. He was convicted of a Kansas misdemeanor offense, “possession of drug paraphernalia,” a charge that did not make reference to a controlled substance. In fact, his conduct would constitute a crime neither under federal law nor under the laws of many states. Nonetheless, U.S. Immigration and Customs Enforcement (“ICE”) arrested Mellouli and sought to deport him for violating a state law “relating to a controlled substance.” This case could also simultaneously serve as a conduit for showing the public at large how draconian adherence to prioritizing the prosecution of “alien criminals” produces undesirable effects, such as insufficient due process and wildly disproportionate consequences—like deportation—for minor offenders.

The second case, Kerry v. Din, also has at its base important due process concerns. Here, they flow from a U.S. citizen petitioner’s rights before a Department of State (“DOS”) denial of her husband’s visa at one of its consular posts. At issue is (1) whether the consular officer’s refusal of a visa to a spouse of a U.S. citizen impinges upon a constitutionally protected interest of the citizen; and (2) whether a citizen-petitioner is entitled to challenge in court the refusal of a visa to her spouse and to require the government to identify a specific statutory provision rendering him inadmissible and the explicit conduct that would render the spouse ineligible in order to sustain the visa refusal.

Thus, Kerry v. Din will squarely exhort a review of the doctrine of “consular nonreviewability”—sometimes referred to as “consular absolutism.” This principle surged following the SCOTUS decision in United States ex rel. Knauff v. Shaughnessy roughly 65 years ago and embodies the notion that a consular officer’s (i.e., at an exterior post, by definition) decision to grant or deny a visa petition is not subject to judicial review. The Knauff court explicitly stated that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” [338 U.S. 537, 544 (1950)]. Those familiar with immigration law will recognize that this was but a culmination of successive rulings reinforcing the idea that the power to exclude aliens is both inherent in the sovereign and exclusive to its political branches of government; that a noncitizen’s rights are at their lowest prior to acceding to our borders. In practice, this means that the exercise of “discretion” by immigration agents often results in an unsatisfactory “because I said so” explanation by the government, without more, as if it were dealing with insolent children. In an area that impacts many fundamental facets of an individual’s daily life, the current dearth of due process and unquestioning reliance on a particular agent’s determinations is grossly misplaced.

Amber and Victor Ramirez of Kankakee, Illinois, is just one couple that has experienced the negative consequences of this amorphous agency “discretion” in 2011. USCIS granted Amber’s petition for a visa for Victor, her spouse. Victor then traveled to the U.S. consulate abroad—a routine practice for noncitizens that switch immigration status—in Juarez, Mexico to obtain the visa. The DOS consular officer refused to grant the already-approved visa, citing only that there was “reason to believe” Victor might engage in illegal activity in the United States. No further explanation was given.

As it turns out Victor has tattoos and the couple perceived that the consular office was focusing on them. “Victor has never been in a gang, and is not listed in Illinois’ gang database. Amber worked with the local police to explain that Victor’s tattoos did not match any known gang tattoos. The couple explained each of his tattoos, including the tattoo of the name of their daughterThe consulate refused to reconsider or to explain its reasoning, even though over 40 percent of American households include a member with tattoos. The family remains separated based solely on the word of an anonymous bureaucrat.”

This is precisely the category of government action that would be unreviewable under the prevailing consular nonreviewability doctrine, which forms the foundation of the government’s argument in Din. And Din, for its part, bears on the extent to which the government can get away with vague and perfunctory rationales—perhaps not even truly reaching the substantive inquiry of whether an agent’s subjective profiling of an individual is a lawful basis upon which a discretionary immigration action may be made.

Shaun Staller also contributed to this article.

©2014 Greenberg Traurig, LLP. All rights reserved.

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