U.S. Supreme Court

Supreme Court to Rule if Immigrants Should Have their Detentions Reviewed by a Judge

By Peek & Toland on March 12, 2018

The question of whether immigrants can be held for indefinite periods in detention centers again came before the U.S. Supreme Court in October as the justices looked at whether detentions should be reviewed by a judge.

The Washington Post noted a divide between liberal and conservative judges on the question in the case of Jennings v Rodriguez.

It was the second time the nation’s highest court heard arguments in the case which has been hailed as one of the most important immigration cases to come before the U.S. Supreme Court in recent years. Last term, an evenly divided court lacking one member was deadlocked.

The Washington Post noted the liberal justices on the Supreme Court dominated discussions about the indefinite detention of immigrants facing deportation.

At issue is whether immigrants slated for deportation have a right to a bail hearing and potential release after six months if they do not pose a flight risk or a danger to the public. The hearing could impact thousands of immigrants being held in detention centers as they await possible deportation.

Should immigrants have their detentions reviewed by a judge?

Supreme Court to decide if immigrants should have detentions reviewed by a judge

The conservative justices were skeptical about whether the high court should be setting firm deadlines for hearings in the immigration courts.

The court heard from attorneys in the Justice Department that noncitizens – documented and undocumented – had no constitutional rights in the U.S.A.

A lawyer for the Justice Department told the high court that noncitizens — whether documented or undocumented immigrants — have no constitutional right to be in the United States.

Justice Neil M. Gorsuch who has joined the bench since the last hearing is expected to cast the deciding vote.

Previously, the U.S. Court of Appeals for the 9th Circuit ruled immigrants who are fighting deportation should be given bond hearings if they have been held for over six months.

Justice Sonia Sotomayor mounted a strong case for bond hearings. She said noncitizens are languishing for years in detention centers, a situation she branded as “lawlessness.”

This case remains one of the most important immigration battles currently in the courts. It could have a major impact on the Trump administration’s immigration agenda.

If you or a family member is fighting deportation, please contact our Texas immigration lawyers.

Posted in Cancellation of Removal, Immigration

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Supreme Court Decision Means Fewer Children of Immigrants Will Gain Citizenship

By Peek & Toland on December 20, 2017

A U.S. Supreme Court decision in June may mean fewer children of U.S. citizens are likely to gain citizenship themselves in the future.

The decision in Sessions v. Morales-Santana was criticized in some sections of the media and the immigrant community.

An article in Think Progress blasted it as an “unfortunate case.”  The justices concluded U.S. federal citizenship law gives preferential treatment to the children of unwed U.S. citizen mothers. However, the children of unwed citizen fathers are at a disadvantage.

The article said the consequence of the high court decision in Morales-Santana is that fewer sons and daughters of U.S. citizens will gain citizenship themselves, and more people will be subject to deportation.

The man who brought the case, Luis Ramón Morales-Santana, faces deportation to a nation he has not lived in since 1975.

The case sheds light on quirks in the citizenship laws in the United States.

Court hearing impacts children of U.S. citizens

Children of U.S. citizens are less likely to gain citizenship

If you are born to a U.S. citizen, you do not automatically become a citizen yourself. At the time of Morales-Santana’s birth, the child of a non-citizen and a citizen born overseas was only granted citizenship if their parent had been physically present in the United States.

The parent should have been physically present in the country or its outlying possessions for periods of not less than 10 years in total. At least five years must have been after attaining the age of 14 years.

This residency requirement has been changed since. It is now cut down to five years, and two after age 14.

Under federal law, an exception is granted for unwed mothers who are U.S. citizens. They are able to transmit their citizenship to their children after just a year of continuous physical presence in the country.

Morales-Santana fell foul of these complex rules. His father is a U.S. citizen who was born in the U.S. and lived here until 20 days before his 19th birthday.

His father just missed meeting the requirement that allowed him to pass his citizenship to his children.

The gender inequality is highlighted by the fact that had Morales-Santana been born to a U.S. citizen mother who had lived in the United States for the same amount of time as his father, he would be a citizen.

The justices concluded the gender line drawn by Congress in the Immigration and Nationality Act is incompatible with the Fifth Amendment’s requirement that the government accord to all persons “the equal protection of the laws.”

However, the justices decided the Supreme Court is not equipped to convert change the statute and it falls to Congress to pass a law with no gender bias.

An article in Slate alluded to the paradoxical nature of the decision. On the one hand, Justice Ruth Bader Ginsburg’s opinion in the case struck a fatal blow against sex discrimination, it stated.

However, the court struck down the special rule for unwed mothers, applying a five-year residence requirement to all parents.

Is stripped Morales-Santana of the citizenship he was granted by the 2nd Circuit. Individuals in his position face the threat of deportation until the law is changed.

The court’s solution stands to exacerbate the problem of statelessness by making it more difficult for the children of unwed mothers living abroad to gain American citizenship, Slate concluded.

Acquisition of citizenship through your parents is one of the most complicated areas of the law. To find more talk to our Austin citizenship lawyers at (512) 474-4445 or see our resources on citizenship here.

Posted in Citizenship

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Trump’s Travel Ban – What the Supreme Court Must Consider

By Peek & Toland on September 23, 2017

President Donald Trump’s Travel Ban is heading to the Supreme Court in October after months of legal hearings. It is likely to be one of the most important cases the new look Supreme Court will decide.

In June, the highest court in the land allowed some parts of the travel ban to go ahead pending its hearing.

The court permitted the ban to go into effect for foreign nationals who lack a “bona fide relationship with any person or entity in the United States.”

In an unsigned opinion the court, left Trump’s travel ban against citizens of six majority-Muslim countries on hold as it related to non-citizens who had relationships with people or entities in the United States. This included most of the plaintiffs’ cases brought against the travel ban.

Examples of formal relationships include employees who accepted a job with a company in the US, and students accepted to universities in the United States, the court said.

Trump's Travel Ban is before the Supreme Court

Trump’s Travel Ban Will be held by the U.S. Supreme Court

The original travel ban caused chaos at airports in January when Trump issued an executive order. That ban was later suspended by the courts. A revised ban removed Iraq from the list of majority Muslim counties it affected and softened some of the other aspects.

Most reports suggest the partial implementation of the travel ban in the summer caused considerably less disruption than the original ban.

In an opinion piece in the Washington Post, Adam Chilton and Genevieve Lakier, assistant professors of law at the University of Chicago Law School outlined the issues the justices will need to get to grips with when they consider the travel ban in October.

The justices will consider whether the president exceeded his constitutional authority.

Chilton and Lakier wrote the justices will have an opportunity to consider the long-standing legal principle known as the “plenary power doctrine.”

The doctrine gives the President of the United States and Congress power to take action over immigration law.

The academics argue the hearing would give the court to seize the opportunity to finally rid the legal system of this “outdated doctrine.”

Plenary power can be traced back to 1889 when the highest court in the land unanimously upheld a law barring Chinese laborers from returning to the United States once they left the country. The case has been used to give very broad discretion to politicians over who should be admitted to the United States.

The plenary power doctrine has led to some questionable decisions. It has been used to bar communists from the United States and to uphold laws that make it more difficult for men than women to pass citizenship on to their kids.

Chilton and Lakier argue the plenary power doctrine is outdated and has been used to justify racist decisions.

They said while the lower courts were concerned that Trump’s travel ban was motivated by anti-Muslim sentiment, they found “creative ways” to argue the ban did not deserve the deference the plenary power doctrine has been given. They concluded:

“It’s easy to understand why: Lower courts do not have the authority to overturn Supreme Court opinions. But the Supreme Court can overturn its own precedents, and it should take this opportunity to squarely reject the plenary power doctrine as both outdated and unnecessary.”

It remains to be seen if the nation’s highest court will overturn this fundamental piece of law.

However, the futures of thousands of people from six countries in the United States hang on the court’s ruling.

If you have been impacted by Trump’s travel ban, it makes sense to talk to an experienced Austin criminal defense lawyer. Call us at (512) 474-4445.

Posted in Immigration, Immigration Reform

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Detention of Immigrants Without Bonds is Considered by Supreme Court

By Peek & Toland on February 3, 2017

Late last year, the U.S. Supreme Court heard arguments in a case that has been described as one of the most important immigration matters it considered last year. It related to the detention of immigrants without bonds.

The case started as a class action that was filed in California. It raises questions about whether the federal government has the power to deny some immigrants in detention the right for a neutral party to decide if they have the right to a bond.

Under the Immigration and Nationality Act, certain immigrants to the United States must be detained while their removal proceedings proceed.

Immigrant bonds considered by Supreme Court

The U.S. Supreme Court tackled the issue of bonds for immigrants

However, some of them can be released on bond if they can demonstrate that they do not pose a flight risk or are a danger to the public.

The federal government detains many immigrants for extended periods without giving them an opportunity to request release on bond.

The case was brought by Alejandro Rodriguez, a lawful permanent resident who came to the United States when he was just one-year-old.

Immigration authorities held him in 2004 after he admitted misdemeanor possession of a controlled substance. He was sentenced to probation for the crime.

When Rodriguez wanted to be released on bond, immigration officials denied him the right to ask a judge. He was told he was ineligible for bond because of his controlled substance conviction as well as a joyriding conviction five years earlier.

The court report said Rodriguez was held for more than three years as he fought his immigration case, without once being allowed to request a judge for bond.

The refusal to allow him to seek a bond hearing flew in the face of his strong ties to the United States. His parents were U.S. citizens and he worked as a dental assistant.

He was eventually released from his detention but only after the American Civil Liberties Union (ACLU) filed a class action lawsuit. Rodriguez was subsequently granted cancellation of removal. He was allowed to remain in the United States as a permanent resident.

Court Rules in Favor of Hearings for Bonds for Immigrants

In 2001, the U.S. Supreme Court ruled that immigrants who are facing deportation from the United States should be held no more than six months in custody. The justices identified special circumstances in which an exception should be made. These include when immigrants pose a national security threat.

The Ninth Circuit has held that immigrants like Rodriguez, in addition to asylum-seekers who turned themselves in at the border, must be given bond hearings every six months. The onus is on the government to justify continued detention by presenting convincing evidence that an immigrant posed a danger to the community or a flight risk. The government challenged the decision and sought Supreme Court review, which was granted.

U.S. Solicitor General Ian Gershengorn defended the mandatory detention without bond saying it would ensure immigrants appear for their hearings and don’t commit further offenses.

The American Civil Liberties Union accused the government of understating the time immigrants are held to bolster its case before a previous case more than 10 years ago.

Our Texas cancellation of removal attorneys can help you in bond and other immigration cases. Please call us at (512) 474-4445 to learn more about our legal services.


Posted in Immigration, Immigration Reform

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