The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, the Court released its order list. One unusual entry caught my eye:
20-1492—ABDULLA, ABDULMALIK M. V. GARLAND, ATT'Y GEN. The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of the brief filed by the Acting Solicitor General for the United States on August 27, 2021.
I pulled up the docket. As usual, filings in immigration cases are not made public. So I cannot know for certain what the SG's brief said. But I can speculate. Here is the opening paragraph of the Third Circuit's decision:
Abdulmalik Mahyoub Mulhi Abdulla petitions for review of the Board of Immigration Appeals' ("BIA") order denying his motion for certification of late-filed appeal. After an immigration judge ("IJ") ordered Abdulla removed from the United States, Abdulla had 30 days to appeal that order to the BIA but did not do so for 78 days. Abdulla moved the BIA to exercise its discretion to permit the late-filed appeal, citing the exceptional circumstances presented by his appeal, which raises several claims of ineffective assistance of counsel. Because we conclude that the BIA's discretion in the context of this case is not cabined by law, regulation, or a settled course of prior agency action, we lack jurisdiction to review the BIA's decision not to self-certify the late-filed appeal and will dismiss the petition for review in part. We also conclude that we lack jurisdiction to review Abdulla's unexhausted merits claim and non-colorable due process claim. And because Abdulla's other claims are unavailing, we will deny the petition in part.
If I had to guess, the Attorney General decided to exercise its discretion, and accept the late-filed appeal.
Update: SCOTUSBlog posted the SG's brief. Here is the summary of the argument:
Petitioner renews his contention (Pet. 23-33) that he is not removable because he derived citizenship from his father under former 8 U.S.C. 1432(a) (1994). The gov-ernment argued below that Jordon v. Attorney General, 424 F.3d 320 (3d Cir. 2005), foreclosed petitioner's claim of citizenship, and the court of appeals accepted that ar-gument. But the parties overlooked the subsequent Board decisions in Matter of Baires-Larios, 24 I. & N. Dec. 467 (B.I.A. 2008), and Matter of Douglas, 26 I. & N. Dec. 197 (B.I.A. 2013), which are entitled to defer-ence and which rejected Jordon's interpretation of the statute. This Court should accordingly grant the peti-tion for a writ of certiorari, vacate the judgment below, and remand the case for further proceedings (GVR) to permit the court of appeals to apply the relevant Board decisions in the first instance.
And the government relied on Chevron and Brand X deference:
In this case, the statute is ambiguous with respect to the key interpretive question: whether a claimant's parents must have separated before the relevant par-ent's naturalization, or whether those conditions must simply each be fulfilled before the claimant's eighteenth birthday—regardless of the sequence in which that occurs. The Third Circuit's decisions in Bagot and Jordon neither addressed that question in detail nor found the statute unambiguous on this point. See pp. 5-6, supra. And the Board's contrary interpretation, which is consistent with the plain text, persuasive authority, and the legislative history, is eminently reasonable. That interpretation accordingly merits deference under Brand X.
The Biden DOJ also faults the Trump DOJ for failing to cite controlling precedent:
In this case, the government is now acknowledging an administrative interpretation that is not only con-trary to its narrow self-interest but was also established by the agency before the decision below. Because that interpretation was not brought to the court of appeals' attention, that court should have the opportunity to ad-dress its viability and applicability in the first instance. Accordingly, a GVR order would be appropriate.
Thus, a GVR is warranted.