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June 15, 2009

SCOTUS addresses meaning of "aggravated felony" in immigration decision

As detailed at SCOTUSblog here and here, this morning the Supreme Court granted cert on four new cases and handed down two opinions.  All the cert grants were in civil cases, and technically so were the two issued opinion.  But the opinion, per Justice Breyer for a unanimous Court, in Nijhawan v. Holder, No. 08-495 (avaialble here) has lots of criminal law talk as the Justices work through what constitutes an "aggravated felony" to authorize deportation under 8 USC ยง1227(a)(2)(A)(iii).

I may have more to say about Nijhawan, particularly as it pertains to all the complicated issues surrounding "crime of violence" sentencing enhancements, when I get a chance to work through its statutory analysis.  Commentors are welcomed and encouraged to get a running start on Nijhawan nattering.

UPDATE:  Here is some initial press coverage of this ruling: from the UPI, we get "Court eases fraud deportations" and from the AP, we have "Court goes further spelling out deportation rules."

June 15, 2009 at 10:40 AM | Permalink


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Given that every lower court to look at this case got it right I am somewhat surprised that SCOTUS even took this case. It seems like an extremely straightforward case, with little controversy.

Posted by: Soronel Haetir | Jun 15, 2009 11:50:06 AM

On pp. 2-3 of the slip op., the court notes a 3-3 circuit split.

Posted by: Kent Scheidegger | Jun 15, 2009 2:52:22 PM

Soronel, there was a 2- or 3- way split on the issue (depending upon how you count). There have been a few other cases raising the issue in the last few months.

It's also interesting that the Court unanimously took a "sometimes categorical" approach to the agg. fel. statute.

Posted by: Texas Lawyer | Jun 15, 2009 2:55:24 PM

Part of why this seems like an odd case to take is that even if they had chosen the categorical approach the petitioner likely would have lost. The loss stipulation seems like the sort of admission that courts are allowed to examine to figure out which of several alternative offenses was the actual violation.

Posted by: Soronel Haetir | Jun 15, 2009 3:50:30 PM

The petitioner made his admission at the sentencing proceeding and only for sentencing purposes rather than as part of a guilty plea. It would therefore not have been considered under the modified categorical approach.

Posted by: Alan Viard | Jun 15, 2009 4:40:46 PM

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