Osorio-Martinez v. AG — immigration — reversal — Krause

In 2016, the Third Circuit issued a blockbuster immigration ruling in Castro v. US DHS, holding that federal courts lack jurisdiction to hear a challenges to removal brought by a group of women and children caught, on US soil, shortly after entering the US, and that this statutory denial of jurisdiction did not violate the Suspension Clause. It was a crushing loss for immigrant advocates and one of the Third Circuit’s most controversial recent opinions.

Today, just two years later, a different Third Circuit panel heard a second appeal brought by four of the children and their mothers who were among those denied a forum in Castro. The opinion’s introduction explains:

Now, two years after their initial detention, Petitioners raise what, at first glance, appear to be the same claims. But upon inspection they differ in a critical respect: The children now have been accorded Special Immigrant Juvenile (SIJ) status—a protective classification designed by Congress to safeguard abused, abandoned, or neglected alien children who are able to meet its rigorous eligibility requirements.

That one difference, the court held today, is dispositive:

[W]e are now confronted with a matter of first impression among the Courts of Appeals: Does the jurisdiction-stripping provision of the INA operate as an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of orders of expedited removal? We conclude that it does.

The court observed that the ” Government’s decision to continue seeking removal is particularly noteworthy because, as far as we are aware, until very recently DHS has never attempted to remove SIJ-classified children back to their countries of origin, much less on an expedited basis.”

How broadly available is SIJ status? Is today’s ruling just a narrow exception, or does it promise to swallow the Castro rule? I didn’t notice any discussion of these questions in today’s opinion, and I’m hoping that immigration experts will shed light here in the days ahead.

Joining Krause were Ambro and Scirica. Arguing counsel were Jessica Rickabaugh of the Tucker Law Group for the appellants and Joseph Darrow of the DOJ for the government. Other notable counsel on the briefs include Nancy Winkelman (formerly of Schnader, now at the Philadelphia District Attorney’s office) for amicus appellant and pending Sixth Circuit nominee Assistant Attorney General Chad Readler for the government.