How the Supreme Court made it “Harder” to Deport Noncitizen Criminals and “Easier” to Deport Undocumented Parents of United States Citizen Children
On the same day last month, the Supreme Court issued two separate decisions with far-reaching implications for immigration practitioners everywhere. In one case, the Court strengthened and reaffirmed use of the “categorical approach” in determining removability on the basis of a criminal conviction, while in another case, the Court split and upheld the injunction halting President Obama’s proposed executive actions intended to shield millions of undocumented parents of United States citizens from deportation.
Ironically, these decisions seemingly make it “harder” to deport noncitizens with criminal convictions in the United States and “easier” to deport undocumented, non-criminal parents of United States citizen children.
In Mathis v. United States, No. 15-6092 (U.S. June 23, 2016), the Supreme Court added another entry to its long line of precedent decisions reaffirming and strengthening use of the “categorical approach” as it applies to both the Armed Career Criminal Act (ACCA) and the Immigration and Nationality Act (INA). See, i.e., Taylor v. United States, 495 U.S. 575 (1990), Shepard v. United States, 544 U.S. 13 (2005), Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), Descamps. v. United States, 133 S. Ct. 2276 (2013). In Mathis, the Court confirmed that under the categorical approach, a State criminal conviction cannot trigger removal from the United States unless the elements of the State offense categorically match the elements of the generic offense referenced by the INA.
For seasoned immigration practitioners and Federal criminal defenders, this likely sounds like nothing new. However, the Mathis decision is useful in that it clearly establishes that the focus of the categorical approach is upon the “elements” of the offenses in question. The Court helpfully defines “elements” as “the constituent parts of a crime’s legal definition – the thing the prosecution must prove to sustain a conviction…[a]t trial, they are what the jury must find beyond a reasonable doubt to convict the defendant…and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty.” Slip op. 2 (internal citations omitted). Elements, according to the Court, are distinct from means (or facts) which are “extraneous to the crime’s legal requirements” and otherwise have no “legal effect or consequence.” Id.
This distinction between elements and means is crucial, particularly when tasked with determining whether a criminal statute is divisible, thus allowing for use of the “modified categorical approach.” See Shepard v. United States, 544 U. S. 13 (2005). Under the modified categorical approach, “a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Slip op. 4. What Mathis makes clear is that when a statute lists alternative factual means of committing a single element or offense, the statute is not divisible and the modified categorical approach does not apply. On this point, the Mathis ruling rejected contrary decisions from the Sixth, Eight, and Tenth Circuits and effectively closed a loophole left open in the Court’s prior decision in Descamps that allowed for reliance on the modified categorical approach when a statute of conviction merely lists alternative facts in the disjunctive. See Descamps, 133 S.Ct. at 2285 n. 2.
The practical effect of Mathis in the immigration context is that it in many cases it has now become more difficult – rightfully so, some would argue – for the government to prosecute removal of a noncitizen based on a predicate criminal conviction. Yet, any celebratory cheers for Mathis emanating from the immigration bar were immediately stifled by the same Court’s decision – or lack thereof – in United States v. Texas, No. 15-674 (U.S. June 23, 2016). In a one-sentence order, the Supreme Court affirmed by an equally divided Court the decision of the U.S. Court of Appeals for the Fifth Circuit, leaving intact a preliminary injunction blocking implementation of President Obama’s executive actions granting “deferred action” to potentially millions of eligible undocumented parents of United States citizens and lawful permanent residents and expanding the previously-implemented deferred action program for undocumented immigrants who entered the United States as children.
The Texas case began when 26 Republican governors filed suit in the friendly confines of the United States District Court for the Southern District of Texas, in Brownsville, Texas, challenging the President’s legal and constitutional authority to implement the Deferred Action for Parents of Americans (DAPA) and expand the Deferred Action for Childhood Arrivals (DACA) executive programs. Under the President’s proposed action, eligible applicants would be exempt from the threat of removal from the United States and would receive authorization for employment in the United States. It is estimated that some 11 million undocumented immigrants would have qualified for protection under both DAPA and the expanded DACA. However, the District Court issued a preliminary injunction halting implementation of the programs. The Fifth Circuit affirmed, and the Supreme Court split, leaving intact the order of the court below. The Obama administration has since asked the Court to grant rehearing when (if) the Court again has all nine Justices.
The case remains far from over, as the merits of the case – including important issues related to standing, the Administrative Procedures Act, and the President’s Constitutional authority – have yet to be fully litigated. In the meantime, however, the practical effect of the Supreme Court’s “punt” in Texas is that millions of undocumented (and non-criminal) parents of natural-born United States citizen children remain at risk of deportation.
June 23, 2016 at the United States Supreme Court provided quite the exemplar of irony.