Do Potential Deportees Have A Constitutional Right To Be Made Aware Of Discretionary Relief From Removal?

The Issue

Section 212(h) of the Immigration and Nationality Act (INA) lists reasons and conditions under which a potential deportee can request discretionary relief from removal. However, not all persons who are subject to deportation know that the possibility of relief is available. Because granting relief from removal is a wholly discretionary decision, deportees who fail to present their eligibility during their removal proceedings might not receive such relief.

Emilio Estrada is a Mexican citizen who was charged with illegal re-entry after deportation, and subject to deportation proceedings.  Estrada’s attorneys failed to advise him about his possible eligibility for relief from deportation, and Estrada did not request discretionary relief. Estrada later collaterally attacked his deportation order, claiming that this failure constituted a violation of his due process rights. In United States v. Estrada (2017), the Sixth Circuit disagreed. Relying on precedent, the court stated that there is no constitutionally-protected right to be informed of relief from deportation because such relief is discretionary. The Sixth Circuit joins six of its sister circuits in this holding. But the Second and Ninth Circuits have held that there is a constitutionally-protected right to be informed of potential relief from deportation, and that a failure by an attorney or an immigration judge to make the potential deportee aware of such relief constitutes a due process violation.

The Split

In Estrada, the Sixth Circuit followed circuit precedent from Huicochea-Gomez v. INS (2001), stating that “an individual has no constitutionally-protected liberty interest in obtaining [or being informed of] discretionary relief from deportation.” The court further stated that the discretionary nature of the relief does not “create a protectable liberty or property interest,” and without such an interest, a due process violation cannot occur.

The Sixth Circuit joins the majority of its sister circuits in holding that an undocumented immigrant does not have a constitutional right to be informed of eligibility for discretionary relief:

  • In Smith v. Ashcroft (2002), the Fourth Circuit stated that “for a statute to create a vested liberty or property interest giving rise to procedural due process protection, it must confer more than a mere expectation…of a benefit. There must be entitlement to benefit as directed by statute.”
  • In United States v. Lopez-Ortiz (2002), the Fifth Circuit stated that “[discretionary relief] conveyed no rights, it conferred no status,” and its denial does not implicate the Due Process clause.”
  • In United States v Santiago-Ochoa (2006), the Seventh Circuit relied on dicta from a previous circuit decision, stating that “it would be hard to show that the loss of a chance at wholly discretionary relief from removal is the kind of deprivation of liberty or property that the due process clause was designed to protect.”
  • In Escudero-Corona v. INS (2001), the Eighth Circuit stated that “eligibility for suspension is not a right protected by the Constitution. Suspension of deportation is rather an act of grace that rests in the unfettered discretion of the Attorney General,” and as such, did not confer a constitutionally-protected right.
  • In United States v. Aguirre-Tello (2004), the Tenth Circuit held that an undocumented immigrant’s constitutionally-protected rights only included the right to “be heard at a meaningful time and in a meaningful place, and nothing more.”
  • In Oguejiofor v. Attorney General of the United States (2002), the Eleventh Circuit held that the petitioner could not assert a due process challenge because he had “no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief.”

In contrast, the Second and Ninth Circuits have held that there is a constitutional right to be advised of discretionary relief:

  • In United States v. Copeland (2004), the Second Circuit stated that “[failing] to advise a potential deportee of a right to seek…discretionary relief can, if prejudicial, be fundamentally unfair.”
  • In United States v. Lopez-Velasquez (2010), the Ninth Circuit stated that “failure to advise an alien of his potential eligibility for discretionary relief violates due process.”

Looking Forward: The Current Administration and the Role of Attorneys

The United States Supreme Court denied certiorari in United States v. Lopez-Ortiz (2002). But given the current administration’s heightened enforcement of immigration laws and the constitutional question posed by this now-current issue, the circuits — and potential deportees and their families — would benefit from a clear ruling from the Supreme Court on this issue. The Sixth Circuit’s ruling brings to the forefront an issue that could have a tremendous and life-changing impact on potential deportees. Because Estrada considers a constitutional question, rather than challenging an actual exercise of discretion, this issue should not fall prey to the bar to judicial review of discretionary immigration decisions.

Estrada, and the cases cited above raise another concern — the failure by attorneys to make their clients aware of the potential for discretionary relief, which was the grounds upon which Mr. Estrada and other potential deportees claimed that their due process rights had been violated. This is not to suggest that attorneys are outright failing their clients. The INA is a complex statute and the grounds for relief are not entirely obvious or well-publicized. Section 212(h) of the INA provides an exhaustive list in of reasons upon which a potential deportee can request relief. While the measures for relief are discretionary and do not guarantee that a person’s deportation will be suspended, attorneys who are representing potential deportees should be aware that there are federal statutory provisions that could help them more thoroughly advocate for their clients. Attorneys — and even law students — who work with undocumented immigrants and others who could be subject to deportation proceedings can take steps to educate themselves and their colleagues on these measures.

Bill of Rights protections for all — or maybe just for some: Are non-citizens protected?

Background

In contrast with the Fifth and Sixth Amendments’ use of the words “person” and “accused,” the First, Second and Fourth Amendments’ text protects certain rights of “the people.” The Fifth and Sixth Amendments prescribe certain rights of individuals in criminal proceedings, while the First, Second, and Fourth provide rights to the public at large. This distinction affects who is protected by these amendments.

Who are “the people” protected by the First, Second and Fourth Amendments? An obvious starting point would be citizens of the United States. But what about permanent resident aliens and refugees residing in the US? What about aliens living in the US without a legal immigration status? Those on a temporary stay visa? Or other classes that may attempt to claim the right? The Supreme Court purported to answer these questions in United States v. Verdugo-Urquidez (1990). It held that the use of “people” in the Fourth Amendment, as well as in the First and Second Amendments, refers to “a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.” The problem then is determining who is part of this national community. Who is considered to have sufficient connection with the United States such that their rights are protected by the First, Second, and Fourth Amendments?

Issue

The Supreme Court has not further clarified who falls under the umbrella of “the people,” and whether the class of “people” is the same in the First, Second and Fourth Amendments. The Court, instead, has left it to lower courts to wrestle with what determines if an individual is part of the class for asserting a constitutional right.  As a result, a difficult question courts have grappled with is whether aliens unlawfully residing in the United States are part of “the people.” With over twelve million such aliens currently residing in the United States, there is a need for a definite answer on what constitutional protections they possess. The Supreme Court in Verdugo-Urquidez declined to decide this issue because “such a claim [was not] squarely before” it. The Court did, however, suggest that an alien who is in the United States voluntarily and has accepted “some societal obligations” may be considered part of “the people.”

The Split

There is a split between the Fifth and the Seventh Circuit on the issue in relation to the Second Amendment. The Fifth Circuit Court of Appeals in United-States v. Portillo-Munoz (2011) held that an alien unlawfully residing in the United States is not a member of “the people” and therefore not given the Second Amendment right to bear arms. Armando Portillo-Munoz had acquired a gun to protect his employer’s chickens from coyotes.  He had been voluntarily present, although unlawfully, in the United States. He was working a steady job, paying rent for his home, and financially supporting his girlfriend and daughter. Yet, the court denied him protection under the Second Amendment and emphasized a distinction between aliens in the United States lawfully and those in the United States unlawfully, even those with substantial connections to the United States. The Eight Circuit in United States v. Flores (2011) and the Fourth Circuit in United States v. Carpio-Leon (2012) have taken the same approach.

The dissent in Portillo-Munoz worried about the implications of the majority’s holding not just for the Second Amendment, but for the First and Fourth Amendments as well. The dissent argued that:

There are countless persons throughout Texas, Louisiana, and Mississippi, who, like Portillo-Munoz, work for employers, pay rent to landlords, and support their loved ones, but are unlawfully residing in the United States. The majority’s reasoning renders them vulnerable — to governmental intrusions on their homes and persons, as well as interference with their rights to assemble and petition the government for redress of grievances — with no recourse.

The Seventh Circuit’s decision came in United States v. Meza-Rodriguez (2015). Mariano Meza-Rodriguez was brought to the United States as a young child and had been residing unlawfully in the country since that time. The court held that an alien unlawfully residing in the United States had the Second Amendment right to bear arms. It emphasized Meza-Rodriguez’s plainly substantial connections to the United States having lived in the country for several years. Despite its holding on this issue, the court upheld a statute prohibiting aliens such as Meza-Rodriguez from possessing firearms and ammunitions because “the right to bear arms is not unlimited” and the ban on the possession of firearms by such aliens “is substantially related to the statute’s general objectives.” Ultimately, the Seventh Circuits disagreement with the Fifth Circuit was not essential to the holding of the case.

While there is not much consideration on the issue with regard to the First Amendment, several circuits have provided Fourth Amendment protections to aliens unlawfully residing in the United States and none have definitively denied the protection. The Fifth Circuit opined in Martinez-Aguero v. Gonzalez (2006) that “cases from [the Fifth Circuit] state unequivocally that aliens are entitled to Fourth Amendment protection.” More recently, during immigration proceedings against a putative alien, the Ninth Circuit stated that in such proceedings it allows for the “suppression of any evidence seized in connection with a Fourth Amendment violation that is egregious.” Armas-Barranzuela v. Holder (9th Cir. 2014). The First Circuit follows a similar approach. Garcia-Aguilar v. Lynch (1st Cir. 2015).

Looking Forward

It is difficult to say when there will be an end to the Supreme Court’s exercise in constitutional avoidance on the issue. In Hernandez v. Mesa (2017), the Court declined to address the related issue of whether a Mexican national shot at the border of the United States and Mexico could claim Fourth Amendment rights because “it is sensitive and may have consequences that are far reaching.” Something to keep an eye on is congressional action on immigration and the potential impact on the status of aliens unlawfully residing in the United States as part of “the people.” However, the legislative landscape is even more fraught with uncertainty than the judicial landscape.

Further Reading:

Mathilda McGee-Tubb, Sometimes You’re in, Sometimes You’re out: Undocumented Immigrants and the Fifth Circuit’s Definition of “The People” in United States v. Portillo-Muñoz, 53 B.C.L. Rev. E. Supp. 75 (2012), http://lawdigitalcommons.bc.edu/bclr/vol53/iss6/7

Negotiate and Chill: How (and Whether) The Time for Plea Negotiations Can Be Excluded Under the Speedy Trial Act

Background

The Speedy Trial Act requires that any information or indictment charging a defendant with an offense must be filed within thirty days from an individual’s arrest or summons in connection with the crime. 18 U.S.§ 3161 (b).

This means that the government has thirty days from the time someone is arrested or summoned to charge that person with a crime.

However, certain periods of time—or delays—can be excluded from the Speedy Trial thirty days. For example, under 18 U.S. § 3161(h)(1), delays “resulting from other proceedings concerning the defendant” can be excluded. The statute gives a non-exhaustive list of eight delays that would count as “resulting from other proceedings”:

(A) determining “mental competency or physical capacity”

(B) trial related “to other charges against the defendant”

(C) interlocutory appeals

(D) pretrial motions

(E) the transfer of the case or removal of a defendant

(F) transportation of a defendant if not unreasonable

(G) a court consideration of a proposed plea agreement

(H) proceedings “under advisement by the court”

Delays “resulting from other proceedings concerning the defendant” are automatically excludable from the Speedy Trial thirty days.

But a delay can still be excluded under other provisions in § 3161, such as (hint) 18 U.S. § 3161(h)(7), under which a delay resulting from a continuance granted to serve “the ends of justice” can be excluded. To be excluded, the reasons the delay serves “the ends of justice” must be set in the record.

The Split

As you might imagine, the real fights happen in the “including, but not limited to” space created by 18 U.S. § 3161(h)(1). For example, circuits cannot come to an agreement on whether plea negotiations are automatically excludable as “resulting from other proceedings concerning the defendant.”

The Second, Fifth, Ninth, and Eleventh Circuits have held that delays resulting from plea negotiations are only excludable under § 3161(h)(7)—where the judge makes findings on the record that the delay serves “the ends of justice.”

These Circuits determined that automatic exclusion only works for delays related to official judicial proceedings because those enumerated examples in 18 U.S. § 3161(h)(1) all relate to official judicial proceedings. The Eleventh Circuit in United States v. Mathurin (2012) stated that:

“'[P]lea negotiations’ are informal discussions between the parties and are directly controlled by the parties, not the court.” (quoting United States v. Lucky (2d Cir. 2009)).

Thus, the court held, plea negotiations are only excludable if the judge makes findings on the record that the delay serves “the ends of justice.”

On the other hand, the Fourth, Seventh, Eighth, and Sixth Circuits have held that delays resulting from plea negotiations are automatically excluded as “resulting from other proceedings concerning the defendant.” The Sixth Circuit, in United States v. White (2017) held that:

“Although the plea-bargaining process is not expressly specified in § 3161(h)(1), the listed proceedings ‘are only examples of delay ‘resulting from other proceedings concerning the defendant’ and are not intended to be exclusive.”

Takeaways

This split is ripe for Supreme Court review and a cert petition is pending.

It is important for the split to be resolved because defendants should be treated the same across jurisdictions. Also, what good is the Speedy Trial Act if defendants are unsure when they will be charged or how the Speedy Trial Act applies to their situation?

Although a look into statutory construction could resolve this split, interesting policy perspectives are at play regarding plea bargaining incentives—how would automatic exclusion of plea negotiations influence the parties to come to an agreement, if at all?

Whether plea agreements are automatically excludable or not, though, it is certainly better that everyone know for sure.

One Meeting Under God?

Background

Prayer in the United States has been contentious ever since it was forbidden in schools. Although over half of Americans say they pray daily, the Supreme Court, in Engel v. Vitale, ruled that public school students cannot be required to begin their day with a nonsectarian prayer . Across the nation, numerous local, county, and state officials take their opening time allotted to them to pray. These prayers are often sectarian in nature.

The argument around prayer in these public institutions stems from the Establishment Clause of the United States Constitution which states, “Congress Shall make no law respecting an establishment of religion.” Circuit courts are split on how to interpret the clause as it relates to the often sectarian prayers that open meetings. The split boils down to whether lawmakers are able to lead prayer in a sectarian manner.

Town of Greece v. Galloway

In Town of Greece v. Galloway, the Supreme Court ruled that prayer that was nonsectarian in nature could open meetings or sectarian prayer led by guest ministers was constitutional. They cited that the first Congress had a paid chaplain open the meeting, highlighting the history of prayer opening meetings. Additionally, they stated that the prayer “lends gravity to public business” to remind the legislatures that they should work towards a “higher purpose” instead of quibbling amongst themselves. The argument that the prayer was coercive in nature was dismissed because “legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”

The Split: Does a lawmaker’s sectarian prayer violate the Establishment Clause of the US Constitution?

Fourth Circuit

The Fourth Circuit ruled that it does. In Rowan v. Lund County, a county in North Carolina had rotating prayer which the elected officials would lead in a clearly sectarian manner. No one other than the elected officials were permitted to offer the prayer. The court ruled that the practice caused the government to be aligned with Christianity with the risk that minority faith citizens would see it as a message of exclusion. They reasoned that although Town of Greece allowed for sectarian prayer from guests and volunteers, the “intimate government involvement” identified the government more strongly with that particular religion because the legislators were the only eligible people to deliver the prayer.

Additionally, the court looked at the audience of the prayers. While Town of Greece found that the intended target of the prayers were the legislators, the Fourth Circuit found that these prayers were intended for the audience and sought audience involvement rather than target specifically the legislators.

Because the audience was targeted and compelled to participate in the prayer, and because the prayers aligned the government with Christianity, the Fourth Circuit ruled that prayers given by lawmakers violated the Establishment Clause of the US Constitution.

Sixth Circuit

The Sixth Circuit took a different approach. In Bormuth v. County of Jackson, a county in Michigan held monthly meetings which were opened by the Commissioners with prayer. A member of the community did not follow Christianity, the religion of all Commissioners, and felt isolated and the Board of Commissioners would prejudice against him because of his beliefs. He voiced his concerns to the Board and was met with expressions of disgust and disagreement, confirming his fear. He filed suit later against the County for violating the Establishment Clause.

Much like the Fourth Circuit, the Sixth Circuit, looked at Town of Greece concerning whether the Commissioners’ prayer practice fell within the tradition of legislative prayer. Looking at the history of legislative prayer, the court rebuked the Fourth Circuit for not engaging the entire legislative prayer history as they had. They found that it was so commonplace that it has been “uninterrupted and continues in modern time.” They say that to strike down a prayer based on the deliverer is an absurd result because one prayer delivered by a minister would be permitted while the same prayer delivered by a lawmaker would be stricken down. To this end, the court holds that the prayers were well within the tradition of legislative prayer.

Next, the court looked to see if the content of the prayer was incompatible with the Establishment Clause. While disparaging and distinguishing the Fourth Circuit’s decision that the content of the prayer was against non-Christians as similar to those in Town of Greece, the court does not agree that one comment that was Christian in nature was enough to disparage nonbelievers. The court also considered that anyone may be elected to the board and lead a prayer in any way that they so choose once elected, adding to their argument that the content and make-up of the Board is irrelevant.

Although the court was unable to determine which coercion standard to apply from Town of Greece, they held that the prayers were not unconstitutionally coercive under either standard, so they did not need to resolve the issue.

Because the prayers were not coercive, not too-Christian in content, not affected by the Board’s composition, and not outside the scope of historic practices, the Sixth Circuit held that the County of Jackson did not violate the Establishment Clause of the Constitution.

Looking Forward

Prayer is a regular part of many town, county, and state meetings. These decisions will ultimately affect how those processes change depending on which jurisdiction the polity may find itself. To that end and due to the current Supreme Court’s enthusiasm with religious freedom cases, the Supreme Court is likely to grant cert. to these cases and settle whether the sectarian prayers are constitutional.

Liberty, Justice, and Handguns for All (in Washington): The D.C. Circuit Weighs In On Concealed Carry

Issue

Is the right to publicly carry a concealed weapon a “core” right protected by the Second Amendment? Gun rights activists throughout the District can celebrate, because the D.C. Circuit said yes. The court struck down the section of the D.C. Code that primarily limited concealed carry licenses to “those showing a good reason to fear injury to [their] person or property.”

The Evolution of Gun Laws in the District of Columbia

Over the last 40 years, the D.C. Council has attempted to establish gun restrictions on three separate occasions.

The first attempt – a complete ban on handgun possession – was struck down by the Supreme Court in District of Columbia v. Heller. In Heller, Justice Scalia analyzed the meaning of the words “keep and bear arms,” and noted that “the inherent right of self-defense has been central to the Second Amendment right.” Justice Scalia (quoting the D.C. Circuit in Parker v. District of Columbia) noted that “banning from the home the most preferred firearm in the nation to ‘keep’ and use for the protection of one’s home and family would fail constitutional muster.” Following Heller, most jurisdictions adopted the holding that the core right protected by the Second Amendment was the right for persons to keep firearms at home.

The Council’s second attempt – which allowed DC residents to possess handguns in their homes, but instituted a total ban on public carrying – was struck down by the U.S. District Court for the District of Columbia in Palmer v. District of Columbia. In Palmer, the court held that a blanket ban on carrying handguns in public was unconstitutional, but some restrictions on carrying handguns in public could be permitted.

The third attempt maintained a ban on publicly carrying a handgun, except for persons who could demonstrate a “good reason” to carry. This “good reason” statute was struck down by the D.C. Circuit in Wrenn v. District of Columbia. In Wrenn, the court noted that the “good reason” statute was effectively the same as a “total ban” for most citizens.

To meet the requirements of the “good reason” statute, applicants for a concealed carry permit would need to “show a special need for self-protection distinguishable from the general community.” The court found the phrase “distinguishable from the general community” problematic. The language of the statute barred most people from obtaining a license to carry, because only a small portion of the D.C. metropolitan community could distinguish their needs “from the general community.” Before Wrenn, the Washington Metropolitan Police Department rejected 77 percent of concealed carry permit applications for failure to show a special need for self-protection.

Taking into consideration the textual and historical analysis in Heller, the court held

“…the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs—falls within the core of the Second Amendment protections.”

With this language, the D.C. Circuit became the latest circuit to join the split over whether carrying beyond the walls of the home is a “core” right protected by the Second Amendment. This may result in greater scrutiny of the “good reason” statutes in other circuits.

The Split

The D.C. Circuit joins the Seventh Circuit in holding that a ban on public carrying violates the Second Amendment. In Moore v. Madigan, the Seventh Circuit struck down the Illinois Unlawful Use of Weapons statute. While somewhat distinct from a “good reason statute,” the statute was effectively a total ban on public carrying, with very narrow exceptions for law enforcement officers, hunters, and members of target shooting clubs (among others). The court held that “confrontation [requiring self-defense with a gun] is not limited to the home.”

The First, Second, Fourth, and Ninth Circuits disagree (for a comprehensive overview of the decisions below, check out another one of our Sunday Splits blogs).

  • In Hightower v. City of Boston, the First Circuit held that the government “may regulate the carrying of concealed weapons outside the home” and upheld Boston’s “good reason” statute.
  • In Kachalsky v. County of Westchester, the Second Circuit declined to extend the reasoning in Heller to carrying outside the home. The court upheld New York’s “good reason” statute, which required applicants seeking to obtain a concealed handgun permit, to “demonstrate a special need for protection.”
  • In Woollard v. Gallagher, the Fourth Circuit held that a “good-and-substantial-reason” requirement could withstand constitutional muster, and upheld Maryland’s “good reason” statute.
  • In Peruta v. County of San Diego, the Ninth Circuit explicitly stated that “there is no Second Amendment right for members of the public to carry concealed firearms in public.”

The D.C Circuit’s decision casts a sharp split on the issue of whether concealed carrying in public is a core right protected by the Second Amendment. The decision struck down the very kind of statute –a “good reason” statute – that has been consistently upheld in sister circuits.

Looking Forward – The Future of Concealed Carry

The D.C. Circuit’s order went into effect on October 7, and residents of Washington, D.C. who pass a background check and a firearms safety test will be permitted to carry a concealed handgun. Some restrictions on concealed carry remain, including prohibitions on carrying firearms into federal buildings or around monuments.

Following the D.C. Circuit’s decision, “good reason” statutes could be challenged in other circuits and present an opportunity for the Supreme Court to rule on this issue. In particular, the D.C. Circuit’s qualification that handguns can be carried “even in densely populated areas” could lead to the arguably strict “good reason” statues being challenged in major cities, such as New York and Boston.

The Supreme Court declined to review the decision in Woollard, and D.C. officials stated that they would not petition the Supreme Court to review the decision in Wrenn shortly before the D.C. Circuit’s order went into effect. But in light of current events, stark administrative changes, and the D.C. Circuit’s decision, the time may be ripe for the Supreme Court to revisit “good reason” statutes and explicitly state whether the core of the Second Amendment protects the right to publicly carry a concealed firearm.

Is the Trump Travel Ban Still Moot? Why the Broader Issue of Executive Power is at Stake.

On December 8, 2015, then candidate Donald Trump called for what colloquially became known to some as a “Muslim ban.” Fast forward almost a full year later to January 27, 2017, when President Trump issued an executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order placed a temporary ban on immigration from seven countries that had been deemed to be terror prone by the Obama Administration. Almost immediately, an injunction was ordered barring the enforcement of the order.

In response, President Trump issued a “watered down” travel ban” on March 6, 2017. The new travel ban was less restrictive than the first ban, allowing immigration from Iraq, and containing an exemption for green card holders and people with permanent residency who were entering the U.S. from any of the other six countries. Despite the revision, the order was challenged in multiple lower courts, and eventually appeals were heard in both the Fourth and Ninth Circuits. Both courts ruled against allowing the “watered down” travel ban to go into effect.

The Supreme Court:

On June 26, 2017, the Supreme Court agreed to hear the appeals of those cases during its fall term. Most notably, they lifted the stays that the lower courts had placed on the travel ban, thereby allowing it to go into effect “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Though a minor legal debate over the scope of the phrase “bona fide relationship” ensued, the decision to lift the stay until the Court heard the case at least signaled to some that the Court was likely to side with President Trump’s assertion of executive power.

 The Split

Though both the Fourth Circuit Court of Appeals and the Ninth Circuit Court of Appeals ruled against President Trump’s travel ban, each court differed in its reasoning. The Fourth Circuit’s decision was based on the premise that President Trump’s rhetoric during the campaign was evidence of his “anti-Muslim sentiment.” The decision went on to say that such discrimination in the form of an executive order violated the Establishment Clause of the First Amendment.

The Ninth Circuit’s decision to stay the ban was based on statutory grounds. They held that President Trump’s Executive Order violated the Immigration and Nationality Act (INA). The INA requires that a President provide reasoning for his or her decision to restrict immigration from certain countries, and the Ninth Circuit held that President Trump failed to provide such support for his order.

Looking Forward and why the Circuit Split Matters:

Recently, the Supreme Court removed the appeals of both of the above cases from its oral arguments calendar for the fall over the question of whether the issue was still moot. In light of both of the lower court decisions, President Trump issued a third travel ban, which added more countries to the list that bans entry and provided a much stronger rationale for the ban after citing an inter-agency review. Though there will likely still be grounds to challenge the new order, it is entirely possible that the Court will not find those new challenges persuasive and thus leave its decision to lift the stay in place.

If this were to happen, it would set up an interesting legal question over what to do with the lower court decisions. The Trump Administration will likely want the lower court decisions vacated because they restrict his authority. In particular, since the Fourth Circuit’s decision was based on constitutional grounds, it is the decision that has a far greater impact on the scope of executive power in the United States. Therefore, what the justices decide to do with the mootness issue and consequently the lower court decisions will play an important role in understanding how the justices view the scope of Trump’s executive power.

Waive after Waive: Can the Government Waive a Challenge to Fourth Amendment Standing?

Background: Not All Standing is Done on the Same Legs

The most familiar idea of “standing” is based in Article III and is about whether someone can participate in the case at all. However, the term “standing” has attached itself to a narrower issue within Fourth Amendment law, despite then-Justice Rehnquist’s misgivings in Rakas v. Illinois.

Fourth Amendment standing is shorthand for the requirement that in a motion to suppress evidence from an unconstitutional search and seizure, the defendant must show that the search violated the defendant’s own personal rights of privacy, liberty, or possession. A defendant lacks Fourth Amendment standing if they attempt to suppress evidence based on the violation of someone else’s rights, for example, when a search of a car one does not own uncovers a gun that one, likewise, cannot lay claim to—the move not permitted in Rakas.

It is the responsibility of the government to bring a challenge to a defendant’s Fourth Amendment standing, but what happens when it does not do so at the district level? Is it waived in any future proceedings?

The Split

Two circuits have held that the government does not waive Fourth Amendment standing issues if it fails to raise them in district court: the First Circuit and the Eighth Circuit. The Eighth Circuit case on point, United States v. Rodriguez-Arreola, clearly states that the government does not waive a lack of Fourth Amendment standing based on a previous case pertaining to Article III standing, surely causing Chief Justice Rehnquist to spin uncontrollably in his grave:

The government cannot waive Rodriguez’s lack of standing, and therefore any argument based on waiver must fail…(“[I]t is elementary that standing relates to the justiciability of a case and cannot be waived by the parties.”).

On the other hand, seven circuits hold that the government does in fact waive Fourth Amendment standing challenges if it fails to raise them in district court, though some circuits are more lenient than others. This majority position is rooted in the idea that just because the word “standing” is involved, it does not implicate Article III jurisdictional issues—it views Fourth Amendment standing as simply shorthand for the substance of the Fourth Amendment.

Most of these circuits (namely, the Third, Fifth, Seventh, Tenth, and Eleventh) hold that the government may not raise an issue of Fourth Amendment standing for the first time on appeal. If the government fails to challenge Fourth Amendment standing on the district level, it amounts to a complete concession on the issue by the government.

The Ninth Circuit, in United States v. Paopao, gives the government some wiggle room, allowing challenges to Fourth Amendment standing to be raised for the first time on appeal. It makes clear in United States v. Ewing, however, that failure to place a challenge to Fourth Amendment standing in the appellate brief only to bring it up at oral argument is not a valid move, and amounts to a waiver of the challenge.

The latest circuit to join the waive-friendly bunch is the Sixth. United States v. Noble leans toward the Ninth Circuit’s holding, though it is not so lenient. The Sixth Circuit first criticizes the approach of the First and Eighth Circuits, noting:

“Fourth Amendment standing is akin to an element of a claim and does not sound in Article III. The government, like other litigants, therefore, can forfeit or waive an argument that defendants lack Fourth Amendment standing.”

Later, the Sixth Circuit lays out its own approach to waivability:

“[W]e would allow the government to raise an objection to a defendant’s Fourth Amendment standing for the first time on appeal, provided that the government can show that the defendant plainly lacked standing and that our failure to recognize it would “seriously affect…the fairness, integrity or public reputation of judicial proceedings.” …However, if the government fails to raise the issue in its opening brief on appeal, then the objection is waived.”

Looking Forward

While the Supreme Court has released opinions concerning Fourth Amendment standing, it has not explicitly stated whether the government waives the issue if it fails to bring it up in district court. Considering the precedent of Rakas, if the right mix of criminal procedures twists and turns its way up to the highest Court, it would not be unreasonable to wager on the path chosen by most circuits today. For what it’s worth, however, this blogger would like to see a reexamination of the general idea that a defendant cannot acquire Fourth Amendment standing without an interest in the property searched, especially when that unconstitutional search specifically targeted that defendant.

Injury In Hack?

In 2016, the number of American consumers impacted by identity theft rose to 15.4 million from 13.1 million in 2015. Eighty-five percent of identity theft victims do not realize their identity has been stolen for a year or longer; and, according to a study completed in 2006, only 0.14% of identity thieves are ever caught.

Unfortunately for these millions of Americans, circuit courts are split over whether threat of future identity theft satisfies the “imminent injury-in-fact” requirement for Article III standing. Article III standing requires: (1) concrete, imminent injury-in-fact; (2) proximate causation; and (3) redressability. The split concerns the meaning of “imminent” within the injury-in-fact requirement.

Clapper v. Amnesty International

The primary case cited by courts on both sides of the issue is Clapper v. Amnesty International. In Clapper, the Supreme Court ruled that an “objectively reasonable likelihood” a future injury will be suffered by the plaintiff is insufficient for Article III standing, and that costs incurred to mitigate speculative harm do not satisfy the injury-in-fact requirement for standing. However, the court stopped short of ruling plaintiffs must prove that the harm will certainly occur. In some cases, “substantial risk” the injury will occur is sufficient.

The Splits

Does increased risk of identity theft qualify as a “substantial risk,” satisfying the imminent injury-in-fact requirement for Article III standing?

To Stand….

The Sixth, Seventh, and Ninth Circuits have held increased threat of identity theft qualifies as an imminent injury-in-fact. Moreover, these courts have held that costs incurred in response to this imminent injury qualify as a present injury-in-fact.

The Sixth and Seventh Circuits rest their decisions on a broad reading of Clapper. The Ninth Circuit decision was made prior to the Supreme Court’s ruling. These courts consider the increased threat to identity theft to satisfy the “substantial risk” standard for injury-in-fact.

In addition to a broad interpretation of Clapper, these courts distinguish the increased threat of identity fraud from the plaintiffs’ claims in Clapper. Primarily, the plaintiffs know their information has been stolen. In contrast, the plaintiffs in Clapper only suspected their conversations were being record. Costs are incurred from a breach of personal information in both cases, but, these courts distinguish the costs incurred to prevent identity theft from the costs incurred by the Clapper plaintiffs. Because the harm in Clapper was purely speculative, the costs incurred therefrom were merely to mitigate tenuous harm. However, if the increased threat of identity theft is not a speculative harm, costs incurred to mitigate should qualify as present injury.

From a public policy perspective, these courts feel it’s unfair to force plaintiffs to wait until their identities are stolen to sue.

Or Not to Stand….

The Third and Fourth Circuits have held increased threat of identity theft does not qualify as an imminent injury-in-fact. Additionally, these courts hold that costs incurred in response to a breach of data information is mitigation of a speculative harm and, under Clapper, not considered sufficient present injury-in-fact.

Both courts consider the increased threat of identity theft to be merely speculative until actual misuse of the personal information can be shown. The Fourth Circuit rests its decision on a narrow reading of Clapper. The Fourth Circuit considers the costs incurred by the identity-theft plaintiffs to be analogous to the costs incurred by the plaintiffs in Clapper, and therefore, determines that the costs are insufficient to satisfy the injury-in-fact requirement. Both courts feel that the plaintiffs’ claims require too many steps in the causal chain to qualify as “imminent.”

From a public policy perspective, these courts consider the slippery-slope of allowing some plaintiffs to sue on hypothetical future injuries, regardless of the likelihood that injury will occur.

Conclusion

Considering the alarming number of Americans affected by identity theft, this split should be resolved to inform citizens as to their legal rights following a data breach. Since few identity thieves are ever caught, litigating against those who are responsible for data breaches may be the only remedy available to those who identities are stolen. Therefore, clarity as to Article III standing must be resolved. On a broader scale, the underlying conflict in interpretation of the “substantial risk” standard following Clapper should also be resolved as this conflicting interpretations will only lead to more splits of this nature.

The Inferiority Complex: Hiring v. Appointing at the SEC

 

They hold hearings. They issue subpoenas. They adjudicate. In the 2016 fiscal year, they ordered $12.4 million in disgorgement and $14.5 million in civil penalties. They are the U.S. Securities and Exchange Commission’s (SEC) administrative law judges.

Administrative proceedings are commonly used by agencies to adjudicate claims or enforcement actions quicker than if the agency filed in federal court. Cases are heard before administrative law judges, or ALJs, instead of Article III judges on the federal bench. While the SEC faces numerous challenges to the partiality of its ALJs and its rules of practice, there is a preliminary challenge—are the SEC’s ALJs constitutional at all?

Hiring v. Appointing

Currently, the SEC’s ALJs are selected by the current Chief ALJ of the SEC, subject to the ALJ hiring process set forth by the Office of Personnel Management. Under the view that ALJs are employees of the SEC, this approach is perfectly fine. However, if ALJs are deemed “inferior officers,” then this selection process is unconstitutional.

The issue derives from the Appointment Clause of the Constitution. The Appointment Clause gives the President the power to appoint “primary officers,” subject to confirmation by the Senate. The clause gives Congress the power to vest appointment power for inferior officers in the President, judicial courts, or heads of departments. Thus far, there is no definitive test to determine what positions are inferior officers as opposed to mere employees.

The Split

In Bandimere v. SEC, the Tenth Circuit determined that SEC ALJS are inferior officers under the Appointment Clause. The court relied upon three facts from Freytag v. Commissioner of Internal Revenue, where the Supreme Court determined that the Tax Court’s special trial judges were inferior officers. The court wrote in Bandimere:

Those three characteristics exist here: (1) the position of the SEC ALJ was “established by Law”; (2) “the duties, salary, and means of appointment . . . are specified by statute”; and (3) SEC ALJs “exercise significant discretion” in “carrying out important functions.”

However, the D.C. Circuit reached the opposite result in Raymond J. Lucia Companies v. SEC. Here, the court determined that ALJs were employees of the SEC by primarily focusing on the fact that the ALJs’ decisions were subject to final review by the SEC Commissioners (who are primary officers).

Put otherwise, the Commission’s ALJs neither have been delegated sovereign authority to act independently of the Commission nor, by other means established by Congress, do they have the power to bind third parties, or the government itself, for public benefit.

Looking Forward

So where does this leave the law? Clearly, one circuit on its own cannot change the structure of a federal agency. If the Supreme Court concludes that the SEC’s ALJs are inferior employees, Congress would need to take swift action to create an appropriate avenue to appoint ALJs to avoid overwhelming the federal docket with cases that would have been resolved in administrative proceedings.

Who Let the Dogs Out? Sniffing Out the Fourth Amendment

Background

The Fourth Amendment

The Fourth Amendment protects people from unreasonable searches and seizures. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In Katz v. United States, the Fourth Amendment was expanded to protect an individual’s right to privacy. Since then, a two-prong test was implemented in Smith v. Maryland to determine if the Fourth Amendment was applicable. Fourth Amendment rights are granted if:

  1. a person “has exhibited an actual (subjective) expectation of privacy” AND
  2. society is prepared to recognize that this expectation is (objectively) reasonable.

Now, how do we apply the Fourth Amendment to tenants who live in apartment buildings with common areas?

The Split

Five circuits have held that tenants do not have a reasonable expectation of privacy in the common areas of their apartments. The circuits reason that the common areas of apartments are open to people beyond the control of the tenants. This includes delivery people, repair services, and visitors of other tenants.

The Sixth Circuit is the only circuit that holds it is reasonable for tenants to expect privacy in the common areas of their apartments. The Sixth Circuit agrees that people beyond the tenants control will enter the common area, but there is an actual expectation of privacy from the general public or trespassers.

“I thought this article was going to be about dogs. I only read this for the dogs. Where are the dogs?”

The Seventh Circuit is one of the five circuits that held that tenants do not have a reasonable right to privacy in common areas of their apartments United States v. Concepcion.

However, the Seventh Circuit held in a recent decision, United States v. Whitaker, that the use of a drug sniffing dog in a common hallway, lead to a tenant’s door, is a ‘search’. The Seventh Circuit cited Justice Kagan’s concurrence in Florida v. Jardines. A drug sniffing dog is considered to be a super sensitive instrument that has the ability to detect objects and activities that are “not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and requires a warrant.”

The Seventh Circuit was very careful to define that the tenant in Whitaker did not have a reasonable expectation of privacy in the common area, but held that a drug-sniffing dog comparable to a sensitive device is not a reasonable expectation for the tenant. Here, a drug sniffing dog resulted in an unreasonable search by the government in violation of the Fourth Amendment.

Looking Forward

The Fourth Amendment strives to protect the privacy interests of individuals against illegal searches and seizures. The true spilt comes from a lack of clarity in terms of what is considered a reasonable expectation. Until there is clarity regarding a reasonable expectation of privacy, the Circuit Courts will just be chasing their own tails.