ILW.COM - the immigration portal Immigration Daily

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Three Great Supreme Court Decisions

by David L. Cleveland, Esq.

In March, April, and May of this year, the United States Supreme Court issued three pro-immigrant decisions. Viewed together, the decisions demonstrate a remarkably "friendly" attitude. The aliens involved were not very sympathetic: one was an armed prison guard; one had filed three motions to reopen; and one used fake names and Social Security numbers. Nonetheless, the Court protected all three of them.

If such aliens deserve protection, then all the more do aliens who have not engaged in such behavior deserve protection and generosity.

Case #1: A prison guard, who forced others to stay outside in the hot sun, leading to death, can still be granted asylum.

Negusie v. Holder, 129 S. Ct. 1159 (March 3, 2009) involved the issue of whether a prison guard could be granted asylum, even though he may have "persecuted" others, by being a guard. Mr. Negusie testified that he was forced to carry a gun and to guard a gate to prevent escapes. He had to make sure prisoners stayed outside in the very hot sun. "He saw at least one man die after being in the sun for more than two hours." 129 S. Ct. at 1163.

The IJ, the BIA, and the Fifth Circuit quickly denied asylum to the applicant, ruling that an alien's motivation and intent are irrelevant to the issue of whether he "assisted" in persecution. The Supreme Court reversed, stating that the relevant statute, INA §101(a)(42) was "ambiguous.

The Court stated that the Refugee Act, including §101, was enacted because Congress wanted "to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees…" 129 S. Ct. at 1166 (internal quotations and citations omitted). By remanding the case, the court indicated it had sympathy for the prison guard. The court suggested that the intent of Congress was that adjudicators should be generous to asylum applicants.

Case #2: a non-credible asylum applicant who filed three successive motions to reopen is not required to show by clear and convincing evidence that a stay should be granted.

Mr. Nken, a citizen of Cameroon, sought asylum. The Immigration Judge denied relief after concluding that Nken was not credible. The BIA affirmed. Nken then filed two successive motions to reopen, both of which were denied. Then, he filed a third motion to reopen; this also was denied by the BIA. Nken sought review of that decision in the Fourth Circuit Court of Appeals, where he also applied for a stay of removal.

Nken argued that the "traditional" standard for a stay applied: to prevail, he needed only to show, among other things, that he was "likely" to succeed on the merits. The government argued that Nken had a heavier burden: i.e. he must show by "clear and convincing evidence" that the order of removal was "prohibited as a matter of law," as required by INA § 242(f)(2), 8 U.S.C. § 1252 (f)(2).

The Fourth Circuit denied the stay of removal, agreeing with the Government that the higher burdens of INA § 242 applied. The Supreme Court reversed. Nken v. Holder, 173 L. Ed. 2d 550, 2009 U.S. LEXIS 3121 (April 22, 2009).

The Court ruled that "we are loath to conclude that Congress would 'without clearly expressing such a purpose, deprive the Court of Appeals of its customary power to stay orders under review.'" 173 L. Ed. 2d at 565 (citations omitted).

Chief Justice Roberts stated that it "takes time to decide a case on appeal. Sometimes a little; sometimes a lot... a court [should take] the time it needs…A stay ... [holds] a ruling in abeyance to allow an appellate court the time necessary to review it." 173 L.Ed. 2d. at 558.

"Of course there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm." 173 L. Ed. 2d at 567.

The Court did not impose the higher burden upon Nken because Congress had not clearly expressed its intent to do so. The Court ruled, in essence, that the removal of an alien is a serious act, which should not done in a hurry. An appellate court should take its time to consider a request for a stay.

Case #3: an alien who enters without inspection, who misuses immigration documents, and who uses the Social Security number of someone else shall not be found guilty unless the Government can prove what the alien knew or did not know at the time

Mr. Flores, a citizen of Mexico, was found guilty of "aggravated identity theft" by the trial court and by the Eight Circuit Court of Appeals. The Supreme Court, however, reversed: Flores-Figueroa v. U.S., 2009 U.S. LEXIS 3305 (May 4, 2009).

Mr. Flores gave his employer a false name, birth date, and Social Security number, along with a counterfeit alien registration card. The Social Security number and the number on the alien registration card were not those of a real person. Six years later, Flores presented his employer with new counterfeit Social Security and alien registration cards; these cards (unlike Flores' old alien registration card) used his real name. But this time the numbers of both cards were in fact numbers assigned to other persons.

Flores was charged with entering the United States without inspection, in violation of 8 U.S. C. § 1325(a), and misusing immigration documents, in violation of 18 U.S. C. § 1546 (a). Flores was also charged with a third crime: "aggravated identity theft," 18 U.S.C. §1028A(a)(1), which sought to punish any offender who "knowingly…uses, without lawful authority, a means of identification of anther person."

Flores moved for a judgment of acquittal on the "aggravated identity theft" counts, claiming that the Government could not prove that he knew that the numbers on the counterfeit identify documents belonged to other people. The Government replied that it need not prove that knowledge; it was enough that Flores knew the numbers were not legitimately his own.

The government argued that Congress wanted to provide enhanced protection for individuals whose identifying information is used to facilitate the commission of crimes, and also Congress wanted to encourage potential offenders to "take great care to avoid wrongly using IDs that belong to others."

The trial court and the Court of Appeals found Flores guilty. The Supreme Court, however, in a unanimous decision, reversed and remanded the case.

The Court in essence ruled that Congress had used certain words in the statute; if Congress desired a different result, it should use different words.

Concurring Justice Scalia opined that the text of the statute was clear; if Congress was desirous of making certain conduct criminal, it could easily write new text, accomplishing that purpose. He also criticized those who would consult legislative history "with an eye to making criminal what the text would otherwise permit." 2009 U.S. LEXIS at *21.

"Indeed, it is not unlike the practice of Caligula, who reportedly 'wrote his laws in a very small character, and hung them upon high pillars, the more effectually to ensnare the people,' 1 W. Blackstone, Commentaries on the Laws of England 46 (1765)." 2009 U.S. LEXIS at *22.


The Supreme Court ruled in favor of three not-so-sympathetic aliens:

  1. an armed prison guard who was involved with death,
  2. a non-credible applicant who had filed three motions to reopen; and
  3. a man who entered without inspection, and then gave his employer fake names and numbers.

The Court could easily have not granted certiorari for these cases; it could have easily ruled against these applicants. Instead, it affirmatively protected them. In each case, the Court stated that the intent of Congress was not clear.

Viewed together, these cases demonstrate this rule: before we deport, and before we punish an alien, courts must be sure that they are carrying out the clearly expressed intent of Congress to do so. Words from the Court over sixty years ago in Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) are still real and powerful:

"We resolved the doubts in favor of that construction [avoiding deportation] because deportation is a drastic measure…To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used."

About The Author

David L. Cleveland, Esq. a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 28 different countries.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.