Supreme Court Update: Judulang v. Holder (10–694) and Harding v. Cross (11-74)

December 19, 2011 Supreme Court Update

Greetings, Court fans!

We're back to bring you the Court's decisions in Judulang v. Holder (10–694), on the standard for determining whether an alien is eligible for discretionary relief from deportation, and Harding v. Cross (11-74), a per curiam decision discussing how much effort prosecutorial authorities must make to locate a witness before that witness can be deemed "unavailable" for purposes of the confrontation clause, as well as a number of recent orders.

If you are looking for good quotes to use in seeking to overturn an administrative agency's policy, Judulang v. Holder (10-694) may come in very handy. Petitioner Judulang was a lawful permanent resident of the United States since 1974. In 1988, he pled guilty to voluntary manslaughter after he was in a fight where another individual shot someone. In 2005, after Judulang pled guilty to a separate, theft-related offense, the Department of Homeland Security ("DHS") commenced deportation proceedings against him based on his 1988 conviction. DHS charged Judulang with having committed an "aggravated felony" involving a "crime of violence." The Immigration Judge ordered Judulang deported and the Board of Immigration Appeals (BIA) affirmed. In doing so, the BIA rejected the possibility that Judulang might be eligible for discretionary relief from deportation under Section 212(c) of the Immigration and Nationality Act ("INA"). (This provision was repealed in 1996, but still applies to convictions prior to that date, since defendants may have pled guilty in reliance on the availability of discretionary relief.) Section 212(c) allows the Attorney General to grant discretionary relief to an excludable alien, if the alien had lawfully resided in the United States for at least seven years before temporarily leaving the country, so long as the alien is not excludable on two specified grounds. Section 212(c), on its face, applies only to exclusion proceedings. But the BIA extended it to deportation proceedings decades ago out of equal protection concerns.

The problem is that the statutory grounds (typically criminal offenses) for deportation and exclusion have always been distinct. The list of crimes that renders an alien excludable and the list that renders an alien deportable are "sometimes overlapping and sometimes divergent." While the BIA has applied varying tests over the years to determine whether a deportable alien could qualify for discretionary relief, it settled on one called the "comparable grounds" rule. Under this rule, the BIA looks to see whether the ground for deportation charged in a case is essentially equivalent to a specified exclusion ground. "[I]f the deportation ground charged covers significantly different or more or fewer offenses than any exclusion ground, the alien is not eligible for a waiver." This is so even if the alien's crime falls entirely within a relevant exclusion category . . . which is exactly what happened to Judulang. The BIA found that the "crime of violence" basis for deportation was not equivalent to any exclusion ground, even though Judulang's crime of voluntary manslaughter would clearly fall within the broader exclusion ground for crimes involving moral turpitude. The Ninth Circuit denied Judulang's petition for review.

The Court reversed unanimously, in a pointed opinion by Justice Kagan. Administrative agencies must have a "reasoned explanation" when they set policy. "That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it." The comparable grounds rule hinges an alien's eligibility for discretionary relief on "an irrelevant comparison between statutory provisions" that were never intended to interact. The rule has nothing to do with an alien's fitness to remain in the country, which is the purpose of the Section 212(c). Judulang's suggested approach of allowing an alien access to discretionary relief where his crime fits within an exclusion category and he otherwise meets the requirements for relief, would do so. The Court easily rejected the Government's argument that the common ground rule should be preserved because it has been long-standing. First, the Court disagreed that the BIA had been at all consistent, but, even if it had, "arbitrary agency action becomes no less so by simple dint of repetition." The Court also gave short shrift to the Government's appeal to the supposed cost-savings of the common grounds rule because "cheapness alone cannot save an arbitrary agency policy."

Next, in Harding v. Cross (11-74), defendant Irving Cross's first trial for sexual assault and other charges ended in a mistrial. Although she expressed a fear of taking the stand, Cross's victim testified against him at the first trial and agreed to testify at a retrial. Shortly before the retrial, however, prosecutors informed the court that the witness could not be located, despite diligent efforts – including multiple visits to her mother and other family members, and checks at her school, local hospitals, and a former boyfriend's home. The court agreed to declare the witness unavailable and allowed the prosecution to use her testimony at the second trial. Cross was convicted.

The District Court denied Cross's federal habeas petition, but the Seventh Circuit reversed. The Seventh Circuit found that the state appellate court was unreasonable in its holding that the prosecutors had made a sufficient effort to secure the witness's presence at trial. Specifically, the Seventh Circuit faulted the authorities for not serving the witness with a subpoena or making certain other inquiries. The Court reversed, in a per curiam decision. Under the Court's precedents, a witness is not "unavailable" for purposes of the confrontation clause's requirements unless the prosecutorial authorities have made a good-faith effort to obtain the witness's presence at trial. "[B]ut the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising." The Court found that, particularly in light of the highly deferential standard for reviewing state court rulings in habeas cases, the state appellate court's ruling that the prosecutors had made a good-faith effort in this case was not unreasonable.

The Court also agreed to hear a series of interesting cases. First, the Court agreed to consider, on an expedited basis, a battle royale over redistricting in Texas. Democrats and advocacy groups have challenged plans designed by the Republican-controlled state legislature as violating minority voting rights. After noting that primary-election deadlines were looming and the state legislature's map had not yet received federal approval under the 1965 Voting Rights Act, a special three-judge panel drew up interim plans for the State's House, Senate, and U.S. Congressional delegation. In Perry v. Perez (11-713), Perry v. Davis (11-714), Perry v. Perez (11-715), the Court stayed implementation of the panel's plans, ordered expedited briefing, and set oral argument for January 9, 2012.

Arizona v. United States (11-182) asks whether federal immigration laws impliedly preempt on their face four provisions of Arizona's Support Our Law Enforcement and Safe Neighborhoods Act, which "authorize and direct state law-enforcement officers to cooperate and communicate with federal officials regarding the enforcement of federal immigration law and impose penalties under state law for non-compliance with federal immigration requirements."

Reichle v. Howards (11-262) involves two Secret Service agents who arrested the respondent following an encounter with then-Vice President Cheney. The case asks: (1) Whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim; and (2) Whether the Tenth Circuit erred by denying qualified and absolute immunity to the agents "where probable cause existed for respondent's arrest, the arrest comported with the Fourth Amendment, it was not (and is not) clearly established that [Hartman v. Moore (2006)] does not apply to First Amendment retaliatory arrest claims, and the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President."

Match-E-Be-Nash-She-Wish Band v. Patchak (11-246), consolidated with Salazar v. Patchak (11-247), together raise the following questions relating to Indian lands: (1) "Whether the Quiet Title Act and its reservation of the United States' sovereign immunity in suits involving ‘trust or restricted Indian lands' apply to all suits concerning land in which the United States ‘claims an interest' . . . or whether they apply only when the plaintiff claims title to the land;" (2) Whether 5 U.S.C. § 702 waives the sovereign immunity of the United States from a suit challenging its title to lands that it holds in trust for an Indian Tribe;" (3) "Whether a private individual who alleges injuries resulting from the operation of a gaming facility on Indian trust land has prudential standing to challenge the decision of the Secretary of the Interior to take title to that land in trust, on the ground that the decision was not authorized by the Indian Reorganization Act;" and (4) "Whether prudential standing to sue under federal law can be based on either (i) the plaintiff's ability to ‘police' an agency's compliance with the law . . . or (ii) interests protected by a different federal statute than the one on which suit is based.'"

Finally, Section 1129(b)(2)(A) of the Bankruptcy Code sets forth three alternative standards for determining if a chapter 11 plan is "fair and equitable" with respect to an objecting class of secured creditors. RadLAX Gateway Hotel v. Amalgamated Bank (11-166) asks: "Whether a debtor may pursue a chapter 11 plan that proposes to sell assets free of liens without allowing the secured creditor to credit bid [pursuant to 1129(b)(2)(A)(ii)], but instead providing it with the "indubitable equivalent" of its claim under 1129(b)(2)(A)(iii)."

The Court also asked the SG to weigh in on cert petitions in the following cases:

Corboy v. Louie (11-336) is a challenge to the availability of certain long-term leases to "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778," which entitle the lessees to significant tax exemptions. Specifically, Corboy would ask: "Whether the Hawaii courts erred in failing to recognize that petitioners [who didn't fall within that description] have standing to seek a refund of their own taxes and that the Equal Protection Clause precludes a State or municipality from creating tax exemptions that are available only to members of a certain race."

Decker v. Northwest Environmental Defense Center (11-338) and Georgia-Pacific West v. Northwest Environmental Defense Center (11-347) concern an Environmental Protection Agency rule that no permit is required for channeled runoff from forest roads under the Clean Water Act's National Pollutant Discharge Elimination System ("NPDES") permitting program. Congress authorized citizens dissatisfied with the EPA's NPDES permitting rules to seek judicial review in the Courts of Appeals; Congress further specified that the rules could be challenged in any civil or criminal enforcement proceeding. The cases would ask: (1) Whether the Ninth Circuit erred in holding that a "citizen may bypass judicial review of an NPDES permitting rule . . . and may instead challenge the validity of the rule in a citizen suit to enforce the [Clean Water Act]; and (2) Whether the Ninth Circuit "should have deferred to EPA's longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that EPA regulate such runoff as industrial stormwater subject to NPDES."

That's all for now, and with the Court on recess, that's likely all we'll have until the new year. Until then, you have our very best wishes for a happy holiday season.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400