Does Pre-Trial Detention Toll a Term of Supervised Release?

Supervised Release

For some people who are convicted of a criminal offense, a sentence can include a term of supervised release (also known as special or mandatory parole). Under 18 U.S.C. § 3624, the federal supervised release statute, a term of supervised release begins on the day that a person is released into the custody of a parole officer. The federal supervised release statute also provides that the term of supervised release is tolled during any period where the person is imprisoned in connection with a conviction for a different federal, state, or local crime.

The Issue

Jason Mont began a five-year period of supervised release on March 6, 2012. On June 1, 2016, Mr. Mont was arrested on state charges and held in pre-trial detention until he pleaded guilty in October 2016. In June 2017, Mr. Mont’s supervised release was revoked, and he was ordered to serve an additional 42 months for violating his supervised release. In United States v. Mont (2018), Mr. Mont claimed that the court did not have jurisdiction to revoke his supervised release, arguing that his supervised release ended on March 6, 2017 (five years after he was initially released). Following circuit precedent established by United States v. Goins (2008), the Sixth Circuit held that pretrial detention that leads to a conviction counts as time “in connection with a conviction,” as described in the federal statute.

The Split

Several circuits have spoken to whether time served in pretrial detention counts as time “in connection with a conviction” for the purposes of the federal supervised release statute, in addition to the Sixth Circuit’s previous ruling in Goins. The Fourth Circuit in United States v. Ide (2010), the Fifth Circuit in United States v. Molina-Gazca (2009), and the Eleventh Circuit in United States v. Johnson (2009) have all held that pretrial detention counts for the purposes of the federal supervised release statute. In contrast, the D.C. Circuit in United States v. Marsh (2016) and the Ninth Circuit in United States v. Morales-Alejo (1999) held that time served in pretrial detention does not qualify.

The Ninth Circuit is the only circuit that has directly addressed the statutory language in the federal supervised release statute:

“A plain reading of this language…suggests that there must be an imprisonment resulting from or otherwise triggered by a criminal conviction. Pretrial detention does not fit this definition, because a person in pretrial detention has not yet been convicted and might never be convicted.”

In Mont, the Sixth Circuit explicitly rejected this interpretation.

Looking Forward

This case has not attracted much attention within the legal community since the Sixth Circuit’s ruling was handed down this past February, but it does have important ramifications for persons whose sentences include a period of supervised release. With six circuits having weighed in on opposite sides of a matter of federal statutory interpretation, the time is ripe for an aggrieved party to petition the Supreme Court for a definite ruling on this issue. Mr. Mont has ninety days from the date of the Sixth Circuit’s judgment to file a writ of certiorari to the Supreme Court – while this deadline has not passed, it is not yet clear whether he will file a petition. In the alternative, given that this issue arises out of different interpretations of a federal statute, Congress could pass a bill to amend the current statute and clarify whether pretrial detention that leads to a conviction counts as time served in connection with a conviction.

Do the due process restrictions on shackling criminal defendants apply equally to jury and non-jury proceedings?

Background

Due process under the Fifth and Fourteenth Amendments restricts the use of physical restraints on criminal defendants during a criminal trial. Because shackles are inherently prejudicial, the Supreme Court instructed in Deck v. Morrison (2005) that defendants should only be shackled during trial as a last resort. Shackles interfere with a jury’s ability to make accurate determinations about both guilt and sentencing because they imply to a jury that the defendant is dangerous, and may cause a jury to infer negative attributes about the defendant’s character.

The Court established a rule in Deck that physical restraints that are visible to a jury may only be used after a trial court determination that they are justified by an essential state interest, based on particular concerns in a specific defendant’s trial. For example, a trial court may find that a particular defendant poses such severe security risks that shackling is necessary to protect the occupants of the courtroom. Judges may not impose blanket rules about the use of restraints, and the inquiry must be specific to concerns about the particular defendant. The Deck rule applies to both guilt-determination proceedings and to sentencing proceedings.

The Court builds the rule in Deck v. Morrison from three essential principles:

  • The presumption of a defendant’s innocence until proven guilty. Visible restraints erode the fairness of the criminal proceeding by implying that the defendant is dangerous and tipping the scale in favor of guilt.
  • The defendant’s constitutional right to counsel. Shackles interfere with a defendant’s ability to move freely to communicate with her attorney. Defendants physically struggle to write when they are restricted by shackles, which limits their ability to effectively communicate with counsel during criminal proceedings.
  • The dignity and decorum of the courtroom is necessary to support confidence that the legal system pursues justice as it handles the potential deprivation of liberty. Courtroom dignity requires that defendants are treated respectfully.

The Issue

The Court only addressed jury proceedings in Deck. The Deck holding left lower courts to determine whether a defendant’s due process rights require the same justification for shackles in proceedings without juries.

The Split

The Second Circuit does not require a specific evaluation of the need for restraints in non-jury proceedings. Because juror prejudice is the primary concern for limiting the use of restraints in the courtroom, the Second Circuit examined in United States v. Zuber (1997) whether a concern of prejudice is present when judges rather than juries do the sentencing.

We traditionally assume that judges, unlike juries, are not prejudiced by impermissible factors, …, and we make no exception here. We presume that where, as here, the court defers without further inquiry to the recommendation of the Marshals Service that a defendant be restrained at sentencing, the court will not permit the presence of the restraints to affect its sentencing decision.

Similarly, the Eleventh Circuit held in United States v. Lafond (2015) that the Deck rule against restraints only limits the use of restraints at proceedings with juries.

The Ninth Circuit arrived at a different conclusion in United States v. Sanchez-Gomez (2017). The court extended the Deck rule to non-jury proceedings and clarified that it applies in pretrial, trial, and sentencing proceedings. The Ninth Circuit now requires that, before shackling a criminal defendant in both jury and non-jury proceedings, courts must decide if the security concerns with the particular defendant outweigh the infringement on the defendant’s due process right.

Continuing with the rationale for the Deck rule, the court applied the principle of presuming a defendant’s innocence until proven guilty.

The principle [that defendants are innocent until proven guilty] isn’t limited to juries or trial proceedings. It includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel. A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.

Using the third Deck justification, the Ninth Circuit reasoned that dignity and decorum require consistent application of the rule:

Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life. A member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need.

Looking Forward

The Supreme Court recently granted a writ of certiorari for Sanchez-Gomez, but declined to take up the issue of whether due process prohibits the use of restraints in non-jury proceedings. The circuit split and conflicting rationales present a need for clarity on this important constitutional issue.

 

 

 

 

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.

Is following procedure discretionary? Limits on the jurisdictional ban on review of discretionary immigration decisions

Issue

In the Immigration and Nationality Act (“INA”), Congress provided certain limits on a court’s jurisdiction to review discretionary decisions by the United States Citizenship and Immigration Services (“USCIS”). The INA provides that “the Secretary of Homeland Security may … for what he deems to be a good and sufficient cause, revoke the approval of any petition approved by him….” 8 U.S.C. § 1155. The substance of such discretionary decisions is not reviewable by the courts under 8 U.S.C. § 1252(a)(2)(B)(ii). The issue is whether the courts can still review the procedural basis for those discretionary decisions.

The issue arose in the context of three almost identical cases in three separate circuits. In each of the cases, the US employer of a citizen of India filed an I-140 (immigrant petition for alien worker) on the employee’s behalf. The employee then changed companies and “ported” their I-140 to their new employer under Section 105 of the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”). The initial I-140s were subsequently revoked and the employees’ requests for adjustment of status denied. The employees in each case sought to appeal the decision alleging that USCIS failed to follow its own procedural regulations in revoking their I-140s.

If a Supreme Court Decision is rendered that—under the discretionary bar—courts could not review such procedural questions, procedural regulations in the immigration context, which supposedly protect the rights of immigrants, would serve as little more than suggestions. For example, in the I-140 context discussed in these cases, supposed protections like the requirement for notice and opportunity to present evidence could be unenforceable by the people affected.

Split

The split exists between the Second and Eleventh Circuits, holding that the courts have jurisdiction to hear claims that USCIS failed to follow procedural regulations, and the Eighth Circuit, holding that the courts lack jurisdiction to hear such procedural claims.

The Second and Eleventh Circuits focus on the word ‘discretionary’ in the statutory limits on jurisdiction found in 8 U.S.C. § 1252(a)(2)(B)(ii).

In Kurapati v. U.S. Bureau of Citizenship and Immigration Servs. (2014), the Eleventh Circuit reasoned that “If … USCIS failed to follow the correct procedure in revoking the I-140 petitions, that failure was not within USCIS’s discretion. § 1252(a)(2)(B)(ii) thus does not prevent judicial review of the conduct of the administrative proceedings.”

In Mantena v. Johnson (2015), the Second Circuit similarly held that “compliance with regulations establishing procedural requirements is ‘not within the discretion of the Attorney General,’ so the INA’s jurisdiction-stripping provision does not apply.”

In contrast, the Eighth Circuit ignores the word ‘discretionary’ and instead draws a distinction between reviewable and non-reviewable procedural questions.

In Rajasekaran v. Hazuda (2016), the Eighth Circuit first noted the Supreme Court’s holding that “courts review an agency’s compliance with its own regulations when … the rules were intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion….” The Eighth Circuit relied on its own precedent in drawing the distinction that “where a procedural rule is designed primarily to benefit the agency in carrying out its functions, judicial review may be circumscribed.” Without explicitly stating that the case fell into this latter category, the court implied within its ultimate holding that the court lacked jurisdiction to review what it calls the agency’s “discretionary procedural decisions.”

In short, while the Second and Eleventh Circuits uphold jurisdiction over review of compliance with procedural requirements on the grounds that following procedural regulations is not discretionary and therefore not covered by the jurisdictional ban, the Eighth Circuit denies jurisdiction over such review on the grounds that these procedural rules are merely designed to help the agency carry out its functions and are still within the umbrella of discretionary decisions covered in the jurisdictional ban.

Looking Forward

On December 5, 2016, the Supreme Court denied a petition for writ of certiorari for the Eighth Circuit’s Rajasekaran v. Hazuda decision. Therefore, it is unlikely that a resolution to this issue, in its present form, will come from the Supreme Court.

A 2017 amendment to the AC21 has presumptively resolved the confusion in I-140 revocation hearings that caused problems for the plaintiffs in the three cases discussed. However, the underlying issue of courts’ jurisdiction to hear appeals on procedural compliance is still very much alive. We may have to wait until the issue returns in another context to get a resolution.

The Demise of “married Sunday, fired Monday”: Sexual Orientation Discrimination in Title VII

The Issue

In June 2015, the Supreme Court held in Obergefell v. Hodges that states must license and recognize same-sex marriages under the Due Process Clause of the Fourteenth Amendment.  While this historic decision opened the chapel doors for same-sex couples, the LGBT community still faces discrimination in other arenas, including employment. Does discrimination based on an employee’s sexual orientation fall under the prohibition of sex discrimination in Title VII of the 1964 Civil Rights Act? Overturning circuit precedent, the Seventh Circuit says yes. The Seventh Circuit is the first to rule in favor of expanding the meaning of discrimination on the basis of sex to include sexual orientation, and is therefore at odds with its sister circuits.

Title VII and Sex Discrimination Cases

Title VII of the Civil Rights Act of 1964 states that an employer subject to the Act cannot discriminate in hiring practices or against employees on the basis of “race, color, religion, sex, or national origin.”  While the Supreme Court has not directly weighed in on whether this statute bans discrimination based on sexual orientation, the Court has previously interpreted the meaning of sex for Title VII purposes. In Price Waterhouse v. Hopkins (1989), the Supreme Court held that discrimination against an employee because he or she does not conform to gender stereotypes is prohibited. In Price Waterhouse, a female senior manager claimed her employer discriminated against her when the firm held her candidacy for a partnership position and failed to propose her for the position because she expressed more masculine attributes in her dress, hair, and personality. In Oncale v. Sundowner Offshore Servs. Inc. (1998), the Supreme Court again expanded sex discrimination under Title VII, holding that the sex of a harasser is immaterial to whether there was sex discrimination. Courts have used these cases to both support and undermine the inclusion of sexual orientation discrimination within Title VII.

The Split

The most recent circuit spilt on this issue is between the Seventh and Eleventh Circuit. In Hively v. Ivy Tech Cmty. College of Ind. (2017), a former part-time professor alleged discrimination under Title VII for her unsuccessful applications for a full-time position as well as the school’s failure to renew her part-time contract in 2014 because she is a lesbian. The Seventh Circuit, in an en banc decision, held that Hively’s claim fits within the interpretation of sex discrimination of Title VII because it is based on assumptions about the proper behavior for someone of a given sex.

The discriminatory behavior does not exist without taking the victim’s biological sex into account. Any discomfort, disapproval, or job decision based on the fact that the complainant- woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.

The court made this determination by using a comparative method of analysis wherein it isolated the significance of the plaintiff’s sex in the employer’s decision and changed only that variable. Examining the situation if all the circumstances were the held the same, including the sex of her partner, and only Hively’s gender was changed, the court stated that “Hively represents the ultimate case of failure to conform to the female stereotype.” The Seventh Circuit also referred to the Supreme Court’s decision in Loving v. Virginia (1967) which held that discrimination because of the race with whom a person associates is a form of racial discrimination, to support its decision under an associational theory.

In Evans v. Ga. Reg’l Hosp. (2017), the Eleventh Circuit dismissed the plaintiff’s sexual orientation discrimination claim as such discrimination is not prohibited by Title VII. The court stated that it was required to follow its precedent in Blum v. Gulf Oil Corp. (1979) that “discharge for homosexuality is not prohibited by the Title VII”, unless the ruling is overruled either by the Supreme Court or the Eleventh Circuit sitting en banc. Rejecting the argument by the plaintiff that the Supreme Court decisions of Price Waterhouse (1989) and Oncale (1998) supported encompassing sexual orientation into sex discrimination, the court stated that these decisions were not clearly on point.

Looking Towards the Supreme Court

In September 2017, the Second Circuit sitting en banc heard oral arguments for Zarda v. Altitude Express, a case regarding this very question. The Equal Employment Opportunity Commission (EEOC) and the Department of Justice both filed amicus briefs. In rare fashion, these two government agencies have opposite positions. In 2015, the EEOC announced that sex discrimination in Title VII includes discrimination based on sexual orientation. The Trump Administration and Department of Justice argue that because Title VII does not define the word sex, it must be taken in its common meaning to mean biologically male or female and, therefore, the law does not encompass discrimination based on sexual orientation. The brief further states that Congress has had ample time and opportunity to add sexual orientation discrimination into the legislation and has chosen not to. The split and opposing opinions present compelling reasons for the Supreme Court to take on the issue in the coming years. It may even be sooner rather than later, as LGBT advocacy group, Lambda Legal, has filed a petition for a writ of certiorari with the Supreme Court to appeal Evans.

 

Having Your Healthcare and Paying For It Too: The Use of Federal Funds at Planned Parenthood

Background

On December 14, 2017, as then-President Obama prepared to leave office, he issued a rule prohibiting states from withholding federal family-planning funds from health clinics that perform abortions, such as Planned Parenthood.  Four months later, on April 13, 2017, President Trump signed a bill reversing that rule.  These actions reflect an ongoing battle over funding for Planned Parenthood and similar clinics.

The Split

Following the release of controversial video footage in 2015, which purported to show Planned Parenthood officials trying to sell fetal tissue for profit, the Arkansas Department of Human Services terminated its Medicaid provider agreements with Planned Parenthood of Arkansas and Eastern Oklahoma.  Three Jane Does—Planned Parenthood patients—sued the Director of the Department under 42 U.S.C. § 1983, alleging that the Department violated their federal right to choose any “qualified” provider under the Medicaid Act.  The district court entered an injunction preventing DHS from suspending payments for services rendered to a class of Medicaid beneficiaries.  In Does v. Gillespie, the Eighth Circuit vacated the injunction on August 16, 2017.  It held that § 23(A) of the Medicaid Act does not create an enforceable right for patients to receive services from any “qualified” provider, and found three significant difficulties with such a contention.  First, it found that the Act is “two steps removed from the interests of the patients” seeking services from a provider through Medicaid:

“A statute that speaks to the government official who will regulate the recipient of federal funding ‘does not confer the sort of ‘individual entitlement’ that is enforceable under § 1983.’…Even where a subsidiary provision includes mandatory language that ultimately benefits individuals, a statute phrased as a directive to a federal agency typically does not confer enforceable federal rights on the individuals.”

Second, the Eighth Circuit found that it could reasonably conclude that Congress did not intend to create such an enforceable right under § 1983 because through the withholding of federal funds, Congress provided another means of enforcing a state’s compliance.  Third, the Eighth Circuit held that “statutes with an ‘aggregate’ focus do not give rise to individual rights.”

The Fifth, Sixth, Seventh, and Ninth Circuits disagree.  All have held that there is a right of action for enforcement of the Medicaid Act’s choice-of-provider provision.  The Seventh Circuit held in Planned Parenthood of Indiana, Inc. v. Commissioner of the Indiana State Department of Health (2012) that § 23(a) of the Medicaid Act “is individual-rights language, stated in mandatory terms.”  It continued:

“Although Indiana has broad authority to exclude unqualified providers from its Medicaid program, the State does not have plenary authority to exclude a class of providers for any reason—more particularly, for a reason unrelated to provider qualifications. In this context, ‘qualified’ means fit to provide the necessary medical services—that is, capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner. The defunding law excludes Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, violating its patients’ statutory right to obtain medical care from the qualified provider of their choice.”

The Ninth Circuit agreed with the Seventh Circuit in Planned Parenthood Arizona Inc. v. Betlach (2013).  Notably, it found it “evident” that “Congress intended the free-choice-of-provider requirement to create an individual right.”

Looking Forward 

Whether there is an individual right to enforce the provision of the Medicaid Act allowing a patient’s choice of any “qualified” provider under 42 U.S.C. § 1983 is an issue ripe for review by the Supreme Court.  Given the Trump administration’s stance on women’s healthcare, including the rollback of President Obama’s last effort to safeguard federal family-planning funds for Planned Parenthood and similar clinics, this is a highly contentious and controversial issue.

Planned Parenthood is a politically, religiously, and emotionally charged subject in the U.S. culture war, and is often a partisan matter.  In 2012, the Obama administration filed an amicus brief in support of the organization in Planned Parenthood of Indiana.  The Trump administration’s differing position, combined with the addition of Justice Gorsuch on the Supreme Court, make this an even more prominent issue.  The dissent Justice Gorsuch wrote in Planned Parenthood Association v. Herbert (10th Cir. 2016) leave many “freedom of choice” supporters fearful of the accessibility of women’s healthcare options in the future.

Now You See Me, Now You Don’t: Due Process and Foreclosures

The Constitution grants us the right to due process where a property interest is at issue. Part-and-parcel of due process is the right to notice and to be heard. With regard to foreclosures of real property, the question becomes whether all owners must be given notice and a reasonable opportunity to be heard, right? Wrong. The due process requirements only apply to state actors. This distinction seems fairly clear when we think of big private banks like J.P. Morgan & Chase, and governmental entities like the the NYAG. But what happens when we enter that blurry area where a so-called governmental entity is hidden under a cloak of private participation?

The Cases

In 1995, in Lebron v. National R.R. Passenger Corp., the Supreme Court addressed this very issue. In determining a First Amendment violation claim, the Supreme Court established a two-prong test to determine whether a federal government corporation was a government actor. The two prongs are:

  1. The extent to which the corporation was formed for the furtherance of governmental objectives.
  2. The extent to which the federal government retains control over the corporation’s efforts to achieve its objectives.

The majority opinion, written by Justice Scalia, held

[W]here, as here, the Government creates a corporation by special law, for the furtherance of government objectives . . . the corporation is part of the Government for purposes of the First Amendment.

We faced a similar issue with Fannie Mae and Ginnie Mac. In 2008, both agencies were placed under the Federal Housing Finance Agency (FHFA) Conservancy. FHFA, although clearly a governmental entity under the first prong, operated in a way that made it difficult to establish control under prong two, since courts have argued its control is “merely the same control that Freddie Mac had before the conservatorship.”

Though many courts follow the Lebron test, others have created exceptions to the state action tests based on the interpretation of “control” in the second prong. For example, in Herron v. Fannie Mae, despite evident government control on behalf of Fannie, the court found that Fannie Mae was not a state actor because under the Lebron framework, permanent government control is required.”

Looking Forward

The lack of clarity regarding which entities can be established as state actors has led to widespread backlash.

In cases involving FHFA alone, mortgagors have begun challenging Fannie Mae and Freddie Mac foreclosures on due process grounds, arguing that these entities, as state actors, should have been enjoined from trying to execute power of sale foreclosures for lack of constitutional procedure.

Until the definition of “state actors,” for purposes of the due process clause, is established, foreclosed upon mortgagors will forever be in a state of limbo in guessing whether they will be given adequate notice and hearing procedures that they arguably should be entitled to.

For further reading, see the Emory Law Journal.

Notice Needed?: Courts Split on Evidentiary Notice for Asylum Proceedings

A circuit split has developed concerning whether applicants for asylum are required to receive notice of evidence needed for removal proceedings. The split centers on a provision of the Immigration and Nationality Act (INA) concerning burden of proof in granting asylum.

The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

8 U.S.C. § 1158(b)(1)(B)(ii).

The Law

Under the Immigration and National Act, the burden of proof is on the applicant to prove that removal will result in persecution based on the individual’s race, religion, or membership in a particular social group.

The core of the split concerns differing statutory interpretations of the above section, particularly the phrase, “where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided.”

Resolving this split is essential for two reasons: (1) it concerns constitutional issues of due process and (2) it concerns public policy as the Syrian refugee crisis could greatly increase the number of asylum applications processed. Therefore, it is essential to have a clear, uniform policy.

The Split

The Ninth Circuit has interpreted the statute as unambiguously requiring the Immigration Judge (IJ) to give notice to the applicant of evidence required for removal hearings.

A plain reading of the statute’s text makes clear that an IJ must provide an applicant with notice and an opportunity to either produce the evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof.

Ren v. Holder (Ninth Circuit, 2011).

The court arrives at this interpretation primarily based on the statute’s use of the future tense.

 “Congress’s use of a verb tense is significant in construing statutes.” United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). Here, the Act does not say “should have provided,” but rather “should provide,” which expresses an imperative that the applicant must provide further corroboration in response to the IJ’s determination. The applicant cannot act on the IJ’s determination that he “should provide” corroboration, of course, if he is not given notice of that determination until it is too late to do so.

Ren v. Holder.

In addition, the court considers the statute’s grammatical structure in determining Congressional intent.

Second, the grammatical structure of the controlling clause makes the provision’s meaning absolutely clear. The statute requires that corroborating evidence “must be provided” in the event that the IJ determines that it should be provided. Again, this language focuses on conduct that follows the IJ’s determination, not precedes it, as the phrase “must have been provided” would do, and as with the clause above, the statute’s future directed language means that the applicant must be informed of the corroboration that is required. Third, the statute goes on to excuse an applicant from satisfying the IJ’s request for corroboration if he “does not have the evidence and cannot reasonably obtain it.” This language is present-and future-oriented as well; the statute does not say “unless the applicant did not have the evidence and could not have reasonably obtained the evidence.” Therefore, if the IJ decides that the applicant should provide corroboration, the applicant must then have an opportunity to provide it, or to explain that he does not have it and “cannot reasonably obtain it.” It would make no sense to ask whether the applicant can obtain the information unless he is to be given a chance to do so.

Ren v. Holder,

In addition to textual interpretation, the court employs the canon of constitutional avoidance in construing the statute.

Moreover, even if the language had been ambiguous, the canon of constitutional avoidance requires us to come to the result discussed above. The canon “requires a statute to be construed so as to avoid serious doubts as to the constitutionality of an alternate construction.” Nadarajah v. Gonzales, 443 F.3d 1069, 1076 (9th Cir.2006). The REAL ID Act did not change our clear Fifth Amendment caselaw that requires a “full and fair hearing” in deportation proceedings. Campos–Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). We have previously observed that “demand[ing] [corroboration] immediately on the day of the hearing” would “raise [ ] serious due process concerns by depriving [an applicant] of his guarantee of a reasonable opportunity to present evidence on his behalf.” Marcos v. Gonzales,410 F.3d 1112, 1118 n. 6 (9th Cir.2005) A requirement that something be provided even before notice is given would raise even more due process concerns. This provides additional support for our interpretation of the statute, although we reiterate that the statutory text alone mandates our interpretation.

Ren v. Holder.

In contrast to the Ninth Circuit, the Sixth and Seventh Circuits have interpreted the statute as not requiring the IJ to give notice to the applicant of the evidence needed. The Seventh Circuit considers the statute itself provides notice to applicants of the evidence needed.

Finally, we add that the REAL ID Act clearly states that corroborative evidence may be required, placing immigrants on notice of the consequences for failing to provide corroborative evidence.

Raphael v. Mukasey (Seventh Circuit, 2008).

The court also considers the burden that requiring notice would have on the Department of Homeland Security.

To hold that a petitioner must receive additional notice from the IJ and then an additional opportunity to provide corroborative evidence before an adverse ruling, would necessitate two hearings-the first to decide whether such corroborating evidence is required and then another hearing after a recess to allow the alien more time to collect such evidence. This would add to the already overburdened resources of the DHS, and such an approach would seem imprudent where the law clearly notifies aliens of the importance of corroborative evidence.

Raphael v. Mukasey.

The Sixth Circuit, in the most recent decision of the three, elected to follow the Seventh Circuit’s interpretation over the Ninth Circuit’s interpretation.

The court challenged the Ninth Circuit’s “plain reading” of the statute,

This text does not suggest that the alien is entitled to notice from the IJ as to what evidence the alien must present. Even if it could be said that the statute is silent on the issue, and thus possibly could allow for such a construction (and we conclude it does not), it is plainly erroneous to say that the statute unambiguously mandates such notice.

Gaye v. Lynch (Sixth Circuit, 2015).

Looking Forward

This split is unlikely to be resolved until the appointment of a ninth justice to the Supreme Court. Immigration and asylum have been important issues in the 2016 presidential race. As statutory interpretation often divides the Supreme Court, it is unlikely a divided, eight-member Supreme Court will elect to review the split. Therefore, the next president is likely to appoint the justice that will make the final determination on whether applicants for asylum must be provided notice.