Courthouse Steps Oral Argument Teleforum: United States v. Palomar-Santiago

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On April 27, 2021, the Supreme Court will hear oral argument in the case of U.S. v. Palomar-Santiago.  Defendant Palomar-Santiago lost his permanent resident status in 1991 after a California felony DUI conviction.  He was deported and subsequently reentered the country without authorization. 

In the meantime, the Ninth Circuit held that felony DUI was not a crime of violence necessitating the deportation of a permanent resident-defendant.  Now Palomar-Santiago challenges his current 8 U.S.C. 1326 illegal reentry indictment using Ninth Circuit precedent that his initial removal was fundamentally unfair since the crime underlying his deportation was improperly categorized.

The District Court agreed with Palomar-Santiago and the Ninth Circuit affirmed without addressing the merits of the government’s argument: that the Ninth Circuit's decision redefining felony DUI was wrongly decided.

The Supreme Court will address the question whether a defendant who was removed from the United States is automatically entitled to a defense of invalid removal where the crime underlying his removal is no longer a qualifying removal offense within his circuit.

Featuring:

Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland 

 

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Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist's Society's Teleforum conference call. This afternoon, April 27, we discuss the Courthouse Steps Oral Argument: United States v. Palomar-Santiago. My name is Guy DeSanctis and I'm Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.

 

Today, we are fortunate to have with us Brian Fish, who is a member of The Federalist Society's Criminal Law Procedure Practice Group's Executive Committee. After Brian gives his opening remarks, we will turn to you, the audience, for questions so be thinking of those as we go along and have them in mind for when we get to that portion of the call. With that, thank you for being with us today. Brian, the floor is yours.

 

Brian Fish:  Well, thank you very much, Guy. And hello, Federalist Society and future call-ins. I hope to talk about this case with all of you as soon as I conclude my opening remarks. As you heard, I'm a member of The Society's Executive Committee on the Criminal Law Practice Group and, sort of, my area is the overlap between criminal law and immigration law. There's been a rash, if you will, of these kinds of cases to make it to the Supreme Court the last couple of terms. Many of those cases were more — how should we say — more immigration nuance than the criminal law.

 

What we have today, in the Palomar case, is one that is squarely in both camps. This case is really the overlap, in a perfect stance, between criminal law and immigration law. So before I get into today's arguments, just a bit of a background on how an immigration enforcement begins and how it gets to not only the administrative court system but then to the legal court system.

 

This case reminds me of what I was told when I started in immigration law. I was told that it's never over until the alien wins. Well, what we have today is the Ninth Circuit taking up that mantle and saying it really is never over until the alien wins. And the rest of the country is saying no, look, there is a time and a place where an immigration removal order is final and we have, based on the law — I know that's kind of a silly thing these days — but based on the law we have determined when that finality is, and what to do about it should someone try to come back in without permission. That's the crux of the issue, when is a removal order final such that the government can rely on that removal order in prosecuting a criminal case for re-entry after removal?

 

The Immigration and Nationality Act, the INA, codifies several crimes. It doesn't just set up the immigration system, but there are immigration crimes. The one at bat, if you will, today is Title 8 United States Code Section 1326, which is re-entry after previous removal; 1325 would be illegal entry; 1324 is alien smuggling, alien harboring. Those are the three main crimes that the INA codified.

 

Again, we'll be talking about 1326. It starts off with the United States government, in total, has the ability to either put an alien -- in this case an unlawful entry -- in other words someone coming across the border either from Mexico into the southern United States or across the Canadian border illegally, not through a point of entry, and/or not with the proper documentation. Unlike someone who, say, flies into JFK in New York with a Visa and overstays their Visa. That in and of itself is simply a civil violation and you get sent to immigration court. In cases where you come across illegally, the government can prosecute you for the illegal entry — or in this case re-entry — and then put you in removal proceedings before an immigration judge to have you removed. That's step one.

 

In this case, the code, as it was enacted originally, says in 1326 criminal cases the government has to show that you came in previously to the United States without permission, you were removed, and then you came back without having obtained permission to come into the United States. 1326 is a felony. Depending on how many times you've been convicted of 1326, it's either a 2, a 10, or a 20-year maximum sentence. In my experience, very few times is there a 1326 case where it seeks the 20-year sentence because the guidelines are the same as the 10-year sentence so there's not much point in it, but it exists.

 

In Mr. Palomar's circumstance, what he was -- he came in, I believe, illegally but was able to adjust his status, which is the legal terminology for he got a Green Card. He became the lawful permanent resident back in 1990. Unfortunately for him, and the victim of his crime, he was convicted of driving under the influence and causing — and this is the important part — and causing bodily injury the next year, in 1991, which — here's the key legal part, why we've come to the Supreme Court today — at the time was considered an aggravated felony. And if you are an immigrant, either unlawful — or in this case, Mr. Palomar adjusted his status so he was a lawful immigrant — if you are convicted of an aggravated felony, you will then be put into removal procedures to have your Green Card revoked and be removed from the United States.

 

He, in fact, went through that process, was determined that he was, in fact, convicted at that time, again, of the aggravated felony DUI causing bodily injury, waived appeal — key point — and was literally removed the next day. At some point thereafter — could have been the next day, could have been years later, we don't know, but at some point thereafter — he came into the United States, yet again, without permission and was found in 2017 in the District of Nevada, and charged criminally with a violation of 8 U.S.C. § 1326. The District Court and a panel of the Ninth Circuit dismissed the indictment.

 

However, the panel, through Judge -- I have it here -- Judge Clifton of the Ninth Circuit practically begged his colleagues to en banc the case because he believed — as does his colleague out there, Judge Graber — that the Ninth Circuit is so far askew from the rest of the courts on how they interpret 1326 cases that they need to rehear this case in total so that they can come into line with everybody else. And what am I talking about? Well, 1326 prosecutions rely on the administrative removal order.

 

Which -- the immigration court system is part of the Department of Justice. It is, for lack of a better term, an Article II court, not an Article III court, and it's an administrative hearing, and it is civil in nature. It is not a criminal hearing. You have the right to have an attorney, but you don't have the right to a free attorney at the government expense, a la a criminal court. But there are certain quasi-criminal tendencies to the immigration court process, especially if you are detained while you're in immigration proceedings. But it is a civil case and it is treated as such by the courts.

 

So years ago, when the 1326 was enacted, there was no way to challenge the underlying removal order in a 1326 criminal case. You were just stuck with it. You had a removal order. The government showed the removal order to the court. The end. You've been removed before, obviously, you're here, you didn't get permission, government wins, gets a conviction, you get sentenced, and then removed yet again.

 

In a Supreme Court case in 1987, U.S. v. Mendoza-Lopez, the Court stated that you need to have at least some mechanism for a judicial review of the underlying removal order. But — and here's a key point — you've got one crack at this, either at the time you got the initial removal order or if you didn't have a legit crack at it at that time, later when you're going through the 1326 process. That was Mendoza-Lopez.

 

Congress essentially codified that holding in 1326(b), which lays out the three checkboxes, if you will, that a criminal alien respondent, or as we call them today a non-citizen -- the three things that a non-citizen has to do when challenging the underlying removal order, and you have to meet all three. Number one, that you have exhausted your administrative processes in total. Number two, that your removal proceedings deprived you of judicial review and -- and that's key -- and that the process that you went through was fundamentally unfair.

 

The Ninth Circuit -- and hopefully -- well, I won't put that on it. This appears to be yet another time when the Supreme Court has teed up the Ninth Circuit to smack them yet again. Because what they have done in their jurisprudence out there is say well, if you just prove that it's been unfair you don't need to prove one and two. If you just tell us it's unfair then we don't care if you've gone through all of the administrative court processes that you could have gone through, and you don't need to show that you were deprived of judicial review. You just say it's unfair. And if we buy it then you can skip the first two steps, and therefore, get to attack the underlying removal order in your 1326 case, and presumably have a much better chance of beating the charge. That's what's been appealed is that holding by the Ninth Circuit in a case called Ochoa. Actually, the year that Palomar was found yet again without permission in the United States, the Ninth Circuit ruled in Ochoa that, essentially, giving a criminal alien more rights should he have not exercised all of his rights the last time.

 

So why has the Court taken this case today? Well, there's a Circuit split. Here's the split. On the one side, we have the First, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits all saying that what the statute says is constitutional binding and has no other mechanism for review as long as the alien has gone through these steps. If he's removable, he's removable. The end. Then, the Palomar decision comes through on the Ninth Circuit which says nah, we don't care what the statute says, we don't care what Congress says, we don't really care what the Supreme Court says, we just want to go with fundamentally unfair, that's it.

 

So we have, today, a 7-1 court split where the Ninth Circuit is the only court on the one side that says what it's trying to say. So that's the nuts and bolts of what gets the Court to take the case. The Circuit's split -- an overwhelming 7-1 Circuit split. And the government, obviously persuasively, argued in its petition for certiorari and its briefs that it's unlikely that the Ninth Circuit will change its opinion, and that we need to have this case heard by the Supreme Court so that going forward we won't have, essentially, given the aliens in part of the country more rights today that they didn't have when they, essentially, waived appeal or went through the appeal process and lost years ago. At some point, there has to be finality to these decisions, no matter what the old adage of it's never over until the alien wins has told us for many a year.

 

So the one thing I took out of the respondent's -- well, the defendant's brief and opposition -- I hadn't seen the term hornbook since law school. And they actually said that it is hornbook law that where a decision that overturns current precedent is founded that it invalidates everything that came before it. What the defendant was eluding to was a Supreme Court case and a case called Leocal that DUI offenses are not aggravated felonies. The Supreme Court made that decision three years after Palomar was removed from the United States. At the time of his removal, absolutely no one had any issue with a DUI, certainly a DUI causing bodily injury, that that was an aggravated felony.

 

And that's the key point that the defendant raises is that well, look, I waived my right to appeal from immigration judge to the Board of Immigration Appeals because this was, at the time, settled law. What was the point in me hanging out in immigration detention for however long it took for this case to percolate through from immigration court to the BIA and possibly to the Ninth Circuit on a PFR when I could just take my removal order and go back to Mexico? And presumably come back thereafter, but that's beside the point.

 

That's the crux of the legal battle between the two sides is, hey, you waived your right. You could have, as others obviously have done, exercised their right to appeal, take the case all the way up to the Supreme Court. You could have been -- it could have been the United States v. Palomar, which overturned the aggravated felony status of your conviction. You chose to waive that, and get removed to Mexico the next day. That's on you. You had the opportunity to have an appeal administratively, and if you lost the administrative appeal, to take your case for judicial review at the Ninth Circuit. You chose not to. Your case is final. Please go back to Mexico. That's the rub. The defendant, through briefs and arguments today — which we'll get to — said look, such settled law, there was no point in it. And therefore, because there was no point to it and I didn't do it, I was deprived of my right to judicial review and I should have this underlying removal order tossed. And if the underlying removal order is tossed then I can't be prosecuted for illegal re-entry when my -- after a previous removal, if the previous removal was unlawful. That's a mouthful, but that's the argument.

 

So that brings us to this morning's oral arguments, which I found interesting if only for the lack of questions from the bench. But we'll get to a little bit of the Q and A here. I told you the government's main points, which were, look, there's a 1326 -- spells out black letter what's required when you're challenging the previous removal order. It's a very narrow class, and the defendant does not fall into that narrow class, and so, therefore, the Ninth Circuit jurisprudence needs to be overturned.

 

The chief judge starts the questioning from -- and this kind of bothers me. It's bothered me for the last several cases. It used to be that Supreme Court oral arguments -- counsel would start, they would have a much more lengthy presentation, and usually start getting interrupted and try to go back on track, etc., etc. Here what we have is the government, and for that matter defense counsel, just gives a two minute this is our main point and now start firing questions away. And it sort of loses, at least in my view, the more back and forth, give and take, that had been the norm for appellate — certainly, Supreme Court — oral arguments. But that's just my two cents.

 

Anyways, the chief judge starts the questioning of the government's attorney, and is questioning whether the defense contention that because years after the removal proceedings the law changed, does that change in law then invalidate all of the previous removal orders that were similarly situated going all the way back to the time of the dinosaurs, or at least the enactment of the INA? The government's position is look, did the IJ -- there's two facets to this conversation. First of all, a jurisdiction issue and whether this was simply a legal nullity. Neither of those applied. The immigration certainly had jurisdiction of this case. Nobody's arguing that. There's no legal nullity this was a valid -- at the time it was entered -- a valid removal order. What's the problem? Can we now just remove Mr. Palomar yet again?

 

Thomas starts questioning in his time, and his main line was if this case was brought today, would Palomar be removable? And the answer is no because today we have the benefit of the Supreme Court's decision, which says DUIs are no longer aggravated felonies. But that's not the case because at the -- what we should be talking about — again, speaking as government attorney — is that at the time it was entered this was a valid removal order, and we should be able to rely on the removal order for subsequent 1326 prosecutions.

 

Breyer, next at bat, starts talking about -- he's trying to make the analogy between a habeas petition in a criminal case and the elements that I have gone over in 1326, the codify under 1326(d), which codifies Mendoza. And he has a couple of questions but don't really seem to go to the heart of the matter.

 

Justice Alito has a -- I thought a much better line of questions and wanted government to really flesh out their position on why Palomar hadn't done all he could in the administrative hearing. Government brings up the fact that even after Palomar was removed — before simply taking the law into his own hands, if you will, and come back into the United States without permission — he could have filed a motion to reopen his immigration court proceedings based on the change in law. He could have asked the government to join in that motion to reopen. He could have asked the Court sua sponte to reopen these proceedings. He did none of that. He simply took the law into his own hands, came back from Mexico without permission, and thus, brought this upon himself. And he shouldn't get the benefit of not having gone through proper processes because the Ninth Circuit says so -- that he can because it's never over until the alien wins.

 

Justice Sotomayor believes that she sees a constitutional issue in 1326(b) -- well, 1326 prosecutions and how the criminal defendant should get to attack the underlying removal order in 1326(d). She questions government attorney on due process rights, and a World War II era Supreme Court case called Yakus. But in that case, as the government argues, there is nothing that says that the government, and through Congress making a law, can't predicate a criminal violation on an administrative decision. And certainly, our laws, for better or for worse, are replete with criminal violations when you don't do administrative things.

 

Justice Kagan then takes over the questioning and talks about is this a procedural right or a substantive right -- that kind of line of questioning. Importantly, and I thought justices that we'll call the Trump justices — Gorsuch, Kavanaugh, and Barrett — had exactly zero questions of government attorney between them. They asked no questions, which I thought was somewhat surprising, but maybe telling. I would think that if they had absolutely no questions of government's counsel, they must have made up their minds.

 

Turning now to defense counsel. Again, just a very brief overview. It seemed like their main point was immigration law and administrative law, in general, are hard and because -- and are hard to understand. There's a lot of nuance. And because, in their view, their statistic is 90% of the aliens in immigration proceedings are unrepresented that that makes it even tougher. And because it's tough that, essentially, they're deprived of their appellate rights and their rights for judicial review. And the 1326(b) as -- again, as it's codified the Mendoza case, is not enough. What the Ninth Circuit has done is rectified that problem as -- such as it does. And really, that's it. They just say because it's tough that they should be given more rights than what Congress has given them, and what the Supreme Court has said in its jurisprudence, nothing really else.

 

But the chief justice asked a few questions. Let's see here. He makes an analogy between the predicate offense and a, say, a felon in possession of a firearm kind of prosecution. At some point, you lose your right to attack the underlying conviction, or the underlying felony conviction, when you're being prosecuted for the felon in possession. Why do you not at some point -- does the alien actually lose? And when, at some point, does the prior removal become final? Do they always just continuously get the ability to appeal everything, or is there some finality? That's the Q and A between the chief justice and defense counsel. Needless to say, defense counsel tip-toed around that line as best they could. I didn't think it was that effective.

 

Thomas inquired about the complicated aspect to immigration law that I just talked about. Does it matter if Palomar was represented or unrepresented? And here's a decide -- back in that time, and up until about 8, 10 years ago, the immigration judge — when he or she came out on the bench — would literally have an old school black tape recorder and would push record and that's how these cases were -- what happened was recorded. Now, needless to say, some of these cases, if there's multiple hearings, had multiple tapes and the entirety of the record, including all these tapes, was one big rubber band in a file folder.

 

Sadly, of course, many tapes get lost, as was the case in the Palomar immigration court proceedings. They found the file. They didn't find the rubber band or the tapes. So we know the paperwork of what happened, that Palomar was ordered removed based on the charge in the immigration charging document, that Notice to Appear, that he was an aggravated felony, he waived appeal -- all that was on the written record. But if the immigration judge said all the magic words or not, we don’t' know because we couldn't find the tapes, or at least the government, in this case, couldn't find them. But we have enough to know what Palomar was charged with in immigration charging document, and what he was removed upon, and that he was removed the next day.

 

So Thomas asked if it matters, because it was so complicated, whether Palomar was represented or was pro se. It's unclear at the time he did -- he had counsel at some time during the immigration court process. We don't know if that counsel was there at the time of his hearing. Justice Breyer takes over the questioning and he asked some questions about the possible motions to reopen that we've gone over before, but nothing really new.

 

Justice Alito, continuing on his theme of could the defendant have appealed on the same issues at the time of his immigration court case, and the answer is yes. He waived appeal, and that's important. For whatever reason he waived appeal. He could have gone through the entire court process from immigration court to the Board of Immigration Appeals to the Circuit Court, filed cert with the United States Supreme Court as Leocal did, and obviously prevailed. He chose -- Palomar chose not to. At what point does your decision not to actually end the case?

 

Sotomayor has a few questions on whether the mechanism is available to these presumably undereducated, non-English speaking, for the most part, aliens. Should they -- what kind of rights do they have? What kind of mechanisms are in place? Are these mechanisms unavailable?

 

Kagan asked a few questions and actually, if anybody, seemed to not so much attack the defense counsel but put the feet to the fire about whether we're really creating procedural rights, substantive rights -- what are they really asking to do? And it should be noted that while Barrett did ask a few questions -- not really -- and again Gorsuch and Kavanaugh didn't ask any questions of defense attorneys.

 

So that was an hour's worth of Q and A by some, but not all, of the justices, and what appears to me to be the crux of the matter of what the Court will decide the case on is, is this enough? Is the codification of a Supreme Court case of 1987 in [U.S. v. Mendoza-Lopez], codified a few years later, now for 30 years been the law of the land, that these are the three things that a criminal alien has to do -- has to do -- to attack the underlying removal process in a criminal court 1326 case. Does the criminal alien have to do all of these things, or is the Ninth Circuit correct that it's just a question of fundamental fairness?

 

That's a long-winded explanation for a very niche criminal and immigration court case. And Guy, if we're ready and if anybody has a question, I'd be more than happy to fill in some blanks if people have them.

 

Guy DeSanctis:  Yeah. Thank you, Brian. Brian, to start I have one question that could start us off.

 

Brian Fish:  Yes.

 

Guy DeSanctis:  Because this appears to be a problem that going forward will not exist, do you think that this is a one-off case? Or do you think that there will be other ramifications, depending on the Court's decision?

 

Brian Fish:  Well, I definitely think if the Supreme Court agrees with the Ninth Circuit they could open up a flood gate, especially given the fact that elections have consequences. I think what was most telling to me today is that the Biden Administration's Solicitor General's Office argued the case -- I'll use the term straight up. Obviously, this case was brought by the government -- by the Trump Administration, and now obviously taken over by the Biden Administration with somewhat different ideas on immigration enforcement. I was maybe expecting a different approach from government counsel, but they argued consistently with the briefing that had been done on the case both before and after the election and inauguration.

 

So I think if the Supreme Court agrees with the Ninth then what would happen is we could theoretically have courts everywhere, even more so than they have been doing the last few years, invalidating the aggravated felony nature of this kind of criminal charge or that kind of criminal charge, as was done here, so that in an immigration friendly context the mantra of it's never over until the alien wins is true. If we could have a case come before a court and the court says look, yeah, you were removed years ago on -- after getting a conviction for crime X. I'll now say that crime X is no longer an aggravated felony. Therefore, your removal is invalid and you get to stay. I think that is a very likely process, and I think that's what's going to happen if the Supreme Court agrees with the Ninth Circuit in their analysis of what an alien — criminal alien — has to do to attack the underlying removal order.

 

So I think if the Supreme Court agrees, they will just open a flood gate of litigation such that we have not seen because there would be literally thousands of thousands of people who have come back to the United States illegally or would be — who are now outside of the United States — who would be petitioning to come back stating that look, my criminal conviction's no longer an aggravated felony, and so, therefore, my removal was invalid. I want to come back and pay for my flight to come back. And so I think it would cause an even more of an immigration enforcement mess than already exists.

 

Guy DeSanctis:  Thank you for that, Brian. I see now that we have our first question too.

 

Caller 1:  Yes, good afternoon. Thanks very much. I appreciate the great in depth discussion of it. This may be a little out of scope. I know that, at least with respect to legislative enactments, there's a significant body of law regarding prospective versus retroactive application of legislative enactment. I realize that this was sort of all involved entirely in the judicial context but the unique spin and the sort of the quasi-criminal nature of the immigration enforcement. I'm just wondering if — even if they didn't use those words — to what extent those concepts might have been discussed, either in the briefing or the arguments.

 

Brian Fish:  Well, in other "crimigration" land as I call it — that magical spot between criminal and immigration law — there was a much more in depth discussion of the quasi-criminal nature of immigration enforcement. We didn't get that here so much. And I was expecting it more than what we got in the amicus briefs, which were all pro defendant. But they picked up on the same that the public defender's office argued, that immigration law is hard. Because it's hard, and because of the usual language issues, that the aliens don't really know what's happening and, therefore, because of all that when they waive their rights to appeal to the Board of Immigration Appeals and then to the Circuit Courts that they're not really getting the full, if you will -- they're not being told of all of their rights in anything more than a scrape the service level.

 

And because of all of that -- that it's in effect they're not having their right to judicial review given to them, and because of that that we should give them more rights. And the Ninth Circuit specifically in their Palomar decision argued, for lack of a better term, that it settled that because the DUI is no longer an aggravated felony that the alien, Palomar, gets to skip steps one and two and goes right to three. That's what the government was arguing strenuously against is there's nothing in the law that says anybody gets to skip the first two of the three steps when this is what the court said, and this is what Congress codified.

 

Yeah, there are a lot of aliens who go through the system without representation, but that's any civil case. You are entitled to a lawyer, but you're not entitled to a free lawyer. If you are detained it's generally because you got caught immediately after entering, or because you got caught after committing a crime and once you've gone through the criminal law process you're then turned over to immigration enforcement to effectuate the removal process and the actual removal. All of those things are generally talked about in these kinds of cases, but I didn't see a lot of that in this particular briefing from either side. They were more -- both more focused on the procedural rights that the alien has and if it was a knowing waiver of those rights, even if it could have been successful.

 

If he knowingly waived the rights, is it over? And that's really what all of the briefing focused in on and not so much, as we've seen on other cases, whether this is more of a criminal case than a civil case at the removal proceedings. Obviously, a 1326 prosecution is a criminal case. So hopefully that answers it, but there just wasn't a lot of it on this time around.

 

Guy DeSanctis:  Alright. Thank you for that question and the answer. We have our next question now.

 

Glen:  Hi, Brian. It's Glen. Very good job.

 

Brian Fish:  Thank you.

 

Glen:  My question's a little more broad. You used the phrase flood gates. Speaking of flood gates, was there any reference by the lawyers, or any member of the Court, to the current Administration basically inviting everybody to come in, more or less ignoring most immigration law, and the fact that any of these cases would seem to increase by tremendous magnitudes if you open it up? I mean, was there any reference to this background that's going on? I was taken by your comment that the government argued pretty straight up because you know what I see on the internet and everywhere else is that's the last thing they seem to be doing in general in immigration. So were there any comments along those lines you could pass on to us?

 

Brian Fish:  In previous "crimigration" cases there had been, but this one, no. And like I said, three of the justices didn't say anything at all to the government. And again, Barrett only had a couple of questions to defense counsel. Perchance, the Court will view this as a very narrow legal issue that while it will certainly have great consequences if they rule as the Ninth Circuit did, but if they overturn the Ninth Circuit's decision then essentially it will be status quo because the other courts that have ruled on this issue, and the rest of the country, will be just going about things as they've been doing.

 

Unlike if they do rule as the Ninth did, that's when I see the flood gate happening. So to your point, that's why I said I was somewhat surprised that the government argued as they did. I would have been surprised, but not shocked, if they had simply said look, this was taken up by the last Administration. This Administration has new ideas. We fold. I could almost have seen that happen but it didn't, much to my somewhat surprise.

 

So I think if I could read the tea leaves that they will hand down a somewhat narrow rebuke of the Ninth Circuit with the words something along this line, look, guys, come on. Play it straight. Stop making up new rights that don't exist, especially -- especially -- especially when we've already ruled on this, and Congress agreed and codified what we ruled upon years ago. Stop giving these types of cases new life when there shouldn't be any, especially since we've already told you that. That's what I hope I see, but you never know.

 

Glen:  Yep. Thanks.

 

Brian Fish:  Yeah.

 

Guy DeSanctis:  Thank you for that question. As of right now, we don't have any more questions, so is there anything else you'd like to discuss on this topic in the meantime?

 

Brian Fish:  Guy, I think I've hit it all. Like I said to the last caller, I'm hoping just for the numbers of immigration-related cases that are out there — I believe, before the immigration courts and the Board, there are a total of a million cases nationwide — that if the Court were to rule as the Ninth Circuit did we would be adding tens of thousands more. And I don't think that was either the Court's intent back in '87 when it ruled in Mendoza or Congress's intent when it codified 1326(d).

 

So for simplicity's sake, let's hope that the Court simply does the right thing and says look, everybody has chimed in on this issue. Criminal defendant aliens have to jump through three hoops. If they can't do it that's -- there is -- if they can't do it, that's sort of on them and at some point, it is over. The case is over and occasionally the aliens do lose. And we'll see what happens -- my guess is by the end of June.

 

Guy DeSanctis:  Thank you, Brian. I guess we'll wrap up the call.

 

Brian Fish:  Alright.

 

Guy DeSanctis:  On behalf of The Federalist Society I want to thank our expert, Brian Fish, for the benefit of his valuable time and expertise today. And I want to thank our audience for calling in and participating. We welcome listener feedback by email at info@fed-soc.org. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.

 

 

 

 

 

Related Cases

United States v. Palomar-Santiago