New opinion [updated with a notable late-posted immigration opinion]

U.S. v. Bruce—criminal—affirmance—Shwartz

The Third Circuit today held that it was not plain error—indeed, was not error at all—to allow the government to seek a higher sentence based on his prior convictions. The defendant argued on appeal that the statute allowing the government to do so violated the non-delegation doctrine, but the court rejected this argument because it concluded that the statute delegated only executive power, not legislative power.

Joining Shwartz were Scirica and Rendell. The appeal was decided without oral argument.


E.O.H.C. v. Secretary USDHS—immigration—reversal—Bibas

This opinion posted late and I confess I haven’t read it all yet, but the introduction is a powerhouse:

This case raises the age-old question: “If not now, when?” Mishnah, Pirkei Avot 1:14. For aliens who are challenging their removal from the United States, the answer is usually “later.” But not always. And not here.

Federal district courts rarely have jurisdiction to hear disputes relating to removal. That is because the Immigration and Nationality Act (INA) strips them of jurisdiction over all claims “arising from any action taken or proceeding brought to remove” aliens. 8 U.S.C. §1252(b)(9). Instead, an alien must typically litigate his removal-related claims before an immigration judge. Then, after an order of removal, he may appeal to the Board of Immigration Appeals. Only after that may he file a petition for review with a court of appeals. Usually, district courts are not part of this process.

But some immigration-related claims cannot wait. When a detained alien seeks relief that a court of appeals cannot meaningfully provide on petition for review of a final order of removal, §1252(b)(9) does not bar consideration by a district court. Neither does §1252(a)(4), a provision that generally requires Convention Against Torture claims to await a petition for review. For if these provisions did bar review of all claims before the agency issues a final order of removal, certain administrative actions would effectively be beyond judicial review. If “later” is not an option, review is available now.

Appellants E.O.H.C. and M.S.H.S., his seven-year-old daughter, came from Guatemala through Mexico to the United States. The Government seeks to return them to Mexico while it decides whether to grant them asylum or instead remove them to Guatemala. They brought several claims in the District Court, challenging the Government’s authority to return them to Mexico. The District Court dismissed all their claims for lack of subject-matter jurisdiction. We see things differently.

One claim, involving the statutory right to counsel, arises from the proceedings to remove them to Guatemala, so it can await a petition for review. But the rest of the claims challenge the Government’s plan to return them to Mexico in the meantime. For these claims, review is now or never. So we will affirm in part and reverse and remand in part.

It appears to me that the key holding is that immigrant children and others threatened with interim return (versus permanent removal) under the so-called Migrant Protection Protocols (MPP) may bring constitutional and CAT challenges to the interim return in district court, free from INA jurisdiction-stripping provisions.

The opinion noted that the district court raised its ground for dismissal sua sponte and it declined supplemental briefing on the point. It disapproved:

Our adversarial system relies on giving each side a full and fair opportunity to air its best arguments and authorities. Rarely should a court address a complex issue without the benefit of briefing.

Joining Bibas were Ambro and Krause. Arguing counsel were Michael DePrince of Pepper Hamilton and Penn Law professor Tobias Barrington Wolff for the immigrants and Archith Ramkumar of the DOJ for the government.