SCOTUS GVRs Immigration Case In Light of Acting SG's Letter

Alas, we do not know the specifics because immigration filings are not posted to Court's public docket.


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.


NEXT: The Twelfth Rule of Court Packing Is "No"

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  1. "As usual, filings in immigration cases are not made public."


    1. Remember, the BIA is not an Article III court.and thus there is no presumption of access. I believe this was simply an in-artful way of saying that, as AFAIK once they get to Art. 3 courts the usual rules of public filing apply.

  2. Sure, but can I just rewind and ask about this?

    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.

    Surely the court can still review for abuse of discretion? That might not get the appellant anywhere, but it's some way away from saying that the BIA's action is somehow not reviewable.

    1. Surely the court can still review for abuse of discretion?

      That's part of the "settled course" analysis -- essentially a baseline from which abuse of discretion can be measured. From the opinion:

      In Sang Goo Park, we explained two exceptions to our lack of jurisdiction to review orders denying sua sponte reopening. First, we have held that "when the BIA relies on an incorrect legal premise in denying a motion to reopen sua sponte .... we may exercise jurisdiction ... and remand to the BIA so that it may exercise its sua sponte authority under the correct legal framework." Id. at 651 (citation omitted). Second, we held under the "settled course exception" that we may exercise jurisdiction over the denial of sua sponte reopening if a petitioner can "establish that the BIA has limited its discretion via a policy, rule, settled course of adjudication, or by some other method, such that the BIA's discretion can be meaningfully reviewed for abuse." Id. at 653. However, we concluded that the BIA cases cited by the petitioner "d[id] not lead to the reasonable inference that the BIA ha[d] done so here." Id. at 656.

      1. Because somehow incentivising the BIA to avoid establishing any kind of policy for these decisions is a Good Thing? Why doesn't the court say what the legally relevant considerations are? Or require the BIA to explain its reasoning by reference to coherent policy considerations?

    2. Can women’s abortion decisions be reviewed for abuse of discretion?

      The concept of abuse of discretion only exists in a context where discretion is not absolute.

      But inmigration discretion is a sovereign prerogative, characterized as an element of what it means for a nation to be autonomous, in much the same abortion discretion has been characterized as an wlement of individual autonomy. It is absolute and unreviewable except where abd to the extent Congress specifically so provides.

      Trump v. Hawaii reaffirmed this principle.

      1. I'm not sure where that abortion analogy comes from, because last I checked that's not a government decision.

        And I don't know what "sovereign prerogative" has to do with anything, since we're talking about how one one branch of the US government enforces the rule of law against another branch of government (or two). Apart from jury verdicts, somehow, no government decision that affects the life, liberty, or property of any person should ever be without reasons, and those reasons should be set out in a way that can be reviewed by a court. (Again, leaving to one side the question of which standard that court should then apply.)

    3. Review of BIA decisions in immigration cases is extremely narrow. If there's no law, regulation, or settled course of prior agency action, basically the BIA has complete discretion, which makes it effectively unreviewable.

  3. Not sure if this is appropriate or not... but the petition and response can be found at the SCOTUSblog case page:

  4. "If I had to guess, the Attorney General decided to exercise its discretion ... "

    ITS discretion? I just called out this knob for a grammar error last week. As I said then, commenters get a pass - it's the content that matters, and this isn't school. Lawyers on a supreme court blog are another matter.

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