Oral arguments are over for the calendar year at the Court, and the Justices took the bench for the last time in 2011 on Monday morning to release their second opinion of the Term in a case that was briefed and argued on the merits. In Judulang v. Holder, the Court returned to the complicated world of federal immigration law to hand a win to the immigrant and a rebuke to the government.
The petitioner in the case, Joel Judulang, was born in the Philippines but came to the United States in 1974, when he was eight. In 2005, the Department of Homeland Security began efforts to deport him because in the late 1980s he had pleaded guilty to voluntary manslaughter after participating in a fight in which another individual shot and killed a third person. The government charged Judulang with having committed an “aggravated felony” involving a “crime of violence” – which would be grounds for deportation.
If Judulang had pleaded guilty after 1996, the procedure would be relatively straightforward. The immigration judge would have first determined whether he was deportable. If so, the judge would then determine whether he was nonetheless eligible to apply to stay in the United States under a provision of the immigration laws known as “cancellation of removal,” which gives the Attorney General the discretion to allow a deportable immigrant who meets the strict criteria outlined in the law to remain in the country. The “cancellation of removal” provision, which went into effect in 1996, applies to two different sets of immigrants: (1) those, like Judulang, who have been in the United States but have done something to put them at risk of deportation; and (2) people who are trying to come into the United States, either for the first time or after a trip, who would not normally be allowed into the country because of something that they have done in the past.
But Judulang did plead guilty before 1996, and so that “cancellation of removal” provision did not apply to his case (which is generally a good thing, because it can be difficult to meet the criteria for that provision). If he wanted to avoid being deported, he needed to rely on the provision that the “cancellation of removal” provision replaced: a statute known as Section 212(c).
The complication is that Section 212(c) didn’t specifically apply to immigrants who are in the country but being deported. Instead, it applied only to immigrants who are trying to come into the country, and prior to 1996 there was no comparable law for immigrants who are already in the country facing deportation. That difference could create seemingly unfair results: for example, an immigrant who committed an offense that could get him deported might be able to use Section 212(c) if he left the country and then came back, but someone who committed the same offense but stayed in the country would not. So, the government has for some time also allowed immigrants facing deportation to try to rely on Section 212(c) to stay in the country.
To figure out whether an immigrant facing deportation could invoke Section 212(c), the government adopted its “comparable grounds” rule: it would compare the ground on which it sought to deport an immigrant with the grounds listed in Section 212(c). If there was a very close correlation between the two sets of grounds, the immigrant would be eligible to avoid deportation. But, like Goldilocks’s chair, the correlation had to be just right: if the kinds of crimes that make up the ground for deportation were too different from those for the grounds listed in Section 212(c), or if the ground for deportation was made up of more or fewer crimes than its counterpart in Section 212(c), the immigrant would not be eligible.
Judalang’s case is a good example. The federal government sought to deport Judulang on the ground that – as I noted above – he had committed an “aggravated felony” involving a “crime of violence.” And the government ruled that he was not eligible to apply to stay in the country because a “crime of violence” does not have any counterpart in Section 212(c). The government took that position even though the crime that Judulang had committed – voluntary manslaughter – could also qualify as a “crime involving moral turpitude,” which is a ground for eligibility under Section 212(c).
Judulang argued that this “comparable ground” rule was “arbitrary and capricious,” which is the standard that governs many challenges to actions by federal agencies. Agencies get a lot of leeway: courts will allow an agency’s action to stand as long as the decision making process that led to the action was reasonable. On Monday, the Court – in an opinion by Justice Kagan – unanimously agreed with Judulang that the government’s policy could not meet this standard.
The Court began by acknowledging that when it reviews an agency’s decision under the “arbitrary and capricious” standard, it should not “substitute its judgment for that of the agency.” But here, the Court explained, the “comparable grounds” policy set up a situation in which an immigrant’s eligibility to apply to stay in the country under Section 212(c) depended on whether there was a close correlation between the ground for his deportation and the grounds listed in Section 212(c). The problem with this scenario, the Court continued, is that it has nothing to do with whether an immigrant who has committed a particular crime should be allowed to remain in the country, and it therefore has no relationship to the purposes of the immigration laws. Thus, the Court reversed the Ninth Circuit’s decision affirming the BIA’s ruling against Judulang and sent the case back for further proceedings – which will presumably include a determination whether he is eligible to apply to remain in the country under Section 212(c).
The case is important both for immigrants and lawyers who care about “administrative law.” The government tries to deport a surprising number of immigrants based at least in part on things they did prior to 1996. The Judalang decision may make more of them eligible to stay in the United States. On the other hand, because the decision is really about the interpretation adopted by the government, the government may turn around and adopt a new, more defensible rule that is just as hard for immigrants to satisfy.
The Court also issued a decision on Monday in Hardy v. Cross, in which the state of Illinois had asked the Court to review a decision by a federal appellate court ordering the state to either release the respondent, Irving Cross, or retry him.
In 1999, Cross went to trial on kidnapping and sexual assault charges. The primary witness against him – the alleged victim – was afraid to take the stand, but she did so and was cross-examined by Cross’s lawyer. After the jury found Cross not guilty of kidnapping and failed to reach a verdict on the sexual assault charges, the trial judge declared a mistrial. Prosecutors decided to try Cross again on the sexual assault charges. However, shortly before the new trial was scheduled to begin, they told the court that – despite repeated efforts – they could not find the victim. Characterizing the state’s efforts to locate the victim as “superhuman,” the trial court allowed her testimony from the first trial to be read out loud to the jury. This time, Cross was convicted of two counts of sexual assault, and the state courts affirmed his sentence on appeal.
Cross was initially more successful when he went to the federal courts, arguing that he was being held in prison in violation of the Constitution because the victim’s testimony should not have been read to the jury. (In technical terms, Cross was asking the federal courts to issue what is called a writ of habeas corpus, which I discussed in more detail earlier this year.) The Constitution’s Confrontation Clause provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Although the Supreme Court has held that the Clause allows a witness’s testimony to be admitted at a trial if the witness is not available to testify despite a “good faith” effort by the prosecution, the U.S. Court of Appeals for the Seventh Circuit ruled in Cross’s favor. It held that the Illinois court was “unreasonable” when it rejected his appeal on the ground that the state’s efforts to get the victim to testify were sufficient. The state, the Seventh Circuit explained, could (and should) have taken additional steps – such as contacting the victim’s friends and boyfriend about her whereabouts, and subpoenaing her to testify – to make sure that the victim appeared at the second trial.
The state filed a petition for certiorari, asking the Supreme Court to review the Seventh Circuit’s decision, in July 2011. The Justices first considered the case at their September 26 Conference, but they didn’t act on it then. Instead, for two months, the online docket for the case indicated that the case was repeatedly being “relisted” – considered again at a later Conference. As John Elwood patiently reminds us on a regular basis in his Relist (and Hold) Watch for the blog, repeated relistings can be a sign that either a dissent from the denial of certiorari or a summary reversal is in the works. In the first scenario, the Court denies review, but one or more Justices writes an opinion to explain why she would have granted certiorari; in the latter, five or more Justices agree that the opinion below is so plainly wrong that they can decide the case and issue a written opinion for the Court without additional briefing or oral argument.
And in this case, the result was indeed a summary reversal, in a per curiam opinion (that is, an opinion that does not identify any particular Justice as the author). Although most of the Court’s seven-page opinion is taken up by a recitation of the facts and procedural history of the case, the Court makes its point clear in the very first paragraph of the opinion, where it reminds the Seventh Circuit (as well as any other federal judge who might be reading) that federal law “imposes a highly deferential standard for evaluating state-court rulings” in habeas corpus cases. State courts, the Supreme Court emphasizes, must “be given the benefit of the doubt.” In this case, the Court chides the Seventh Circuit, even if the state’s efforts to get the victim to testify at Cross’s second trial didn’t rise to the level of “superhuman,” the Illinois court’s decision in favor of the state was at least “reasonable” (which is all that federal law requires) under the Supreme Court’s cases interpreting the Confrontation Clause, which themselves only require the state’s efforts to find the witness to be reasonable. Monday-morning quarterbacking, the Court seems to suggest, has no place in federal habeas: the fact that the Seventh Circuit could list some other steps that the state might have taken to make sure that the victim testified was not enough to grant Cross federal habeas relief.
The Court’s decision in Hardy is unlikely to have a widespread impact in the future: summary reversals are usually “summary” precisely because they are not close calls, and – as in this case – they usually hinge more on how a lower court has applied an existing legal rule to a particular set of facts than (as in the overwhelming majority of the Court’s cases) on which legal rule is the correct one. But because the Supreme Court communicates with the lower courts almost exclusively through its opinions, the summary reversal in this case still sends a message to federal judges considering requests for habeas corpus in the future: When we say that you should not second-guess state courts, but should instead be “highly deferential” to their decisions, we mean it. And we will pay close attention.
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