On June 26, 2017, the Supreme Court of the United States denied a petition for certiorari in an interesting case titled Mathis v. Shulkin, No. 16-667 (U.S. Jun. 26, 2017). The question before the Court was whether medical evaluators at the United States Department of Veterans Affairs (VA) are entitled to a presumption of competency to provide expert opinions on any medical issues. This presumption of competency places the burden on disabled veteran claimants to rebut the presumption of competency of specific medical evaluators in raising a claim against the VA. The United States Court of Appeals for the Federal Circuit held in an unpublished decision that the medical evaluators are entitled to a presumption of competency. That decision now stands with the Supreme Court having declined to hear the case.
On June 26, 2017, the Supreme Court of the United States denied a petition for writ of certiorari (to hear on appeal) a case titled Peruta v. California, No. 16-894 (U.S. June 26, 2017). The issue in Peruta was whether the Second Amendment to the United States Constitution includes a general right for ordinary and law-abiding citizens to carry guns outside of the home for self-defense. In Peruta v. County of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc), in a decision that now stands, the full United States Court of Appeals for the Ninth Circuit, held that the Second Amendment does not entitle such individuals to carry handguns outside of the home for self-defense. Interestingly, the en banc Ninth Circuit thereby reversed the original decision of a three-judge panel of the Ninth Circuit in Peruta v. County San Diego, 742 F.3d 1144 (9th Cir. 2014), which had held that the Second Amendment does include within its scope the guarantee of the right to carry handgun outside of the home for self-defense. Justice Clarence Thomas filed an opinion dissenting from the denial of the petition to hear Peruta at the Supreme Court. He was joined in his dissent by Justice Neil Gorsuch. In this post, I will examine Justice Thomas’s dissent before explaining why I agree with his reasoning. The dissent only numbers eight pages and it is well worth reading in full in addition to this post.
On June 26, 2017, the Supreme Court of the United States issued a brief per curiam decision (authored by multiple justices) in Hernandez v. Mesa, 582 U.S. ___ (2017). In Hernandez, the parents of a Mexican national who was shot from across the border by a U.S. Border Patrol agent, endeavored to assert claims for damages against the agent in reliance upon the holding of the Supreme Court decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Specifically, although no Federal statute provides for a cause of action against Federal officials for violations of constitutional rights, the parents asked the Supreme Court to find that its decision in Hernandez created an implied cause of action under the Fourth Amendment against the agent. Additionally, the Court was asked by the agent to consider whether the he was entitled to qualified immunity on the claim that the shooting violated the victim’s Fifth Amendment rights. Ultimately, the Court vacated the lower court decision of the United States Court of Appeals for the Fifth Circuit and remanded the case for further consideration. This was due in part to the Court’s decision in Ziglar v. Abbasi, 582 U.S. ___ (2017), which had been issued only one week before and which also addressed Bivens.
On July 3, 2017, the Executive Office for Immigration Review announced that Katherine H. Reilly has been appointed as the new EOIR Acting Deputy Director. As EOIR Acting Deputy Director, she will supervise the EOIR’s components and assist the EOIR in formulating and administering policies and strategies.
A couple months ago, I wrote an opinion blog post titled “Why AILA’s ‘Justice Campaign’ Misses the Mark on Advocacy During the Trump Administration.” That post addressed the newly-created “Justice Campaign” of the American Immigration Lawyers Association (AILA), wherein it listed ways it plans to oppose the immigration policies of the administration of President Donald Trump. The post we will be examining is written by Anthony Drago, Jr., Esq., a fellow immigration attorney and active member of AILA. It was posted on AILA’s think immigration blog on June 30 and titled “Will Government Employees Show Some Moxie in the Immigration Struggle?” Although the post is interesting and provocative, it ultimately misses the mark on the best strategies for advocacy during the Trump Administration.
On June 28, 2017, the Department of Homeland Security (DHS) announced new aviation security measures for flights to the United States. It is important to understand that these aviation security measures are not immigration-related, and that they will affect both foreigners and U.S. citizens flying into the United States. In this post, we will briefly examine the DHS’s new aviation security measures.
On April 19, 2017, New Jersey Supreme Court Chief Justice Stuart Rabner submitted a letter to the Department of Homeland Security (DHS) objecting to the immigration arrest of two individuals as they were making required appearances in New Jersey Court for criminal proceedings. A spokesman for the United States Immigration and Customs Enforcement (ICE) stated that the ICE only arrests targets at courthouses after all other options have been exhausted. He added that tracking criminal aliens is resource intensive, and that in certain cases courthouses provide “the most likely opportunity” to locate a target and take him or her into custody”. Furthermore, he added that courthouse arrests are safer for agents because courthouses have metal detectors and other screening processes.
On June 21, 2017, the American Immigration Lawyers Association (AILA) posted the minutes of a meeting with the Office of Foreign Labor Certification (OFLC) that took place on June 6, 2017 (see AILA Doc. No. 17062131 (6/21/2017)). In this post, I will examine in brief an update provided by the OFLC regarding the implementation of the provisions of President Trump’s April 18, 2017, Executive Order 13788 titled “Buy American and Hire American.”. Please see our full article on the “Buy American and Hire American” Executive Order to learn in more detail about its immigration-related provisions.
On June 19, 2017, the Supreme Court of the United States released a flurry of decisions as the term came to a close. In this post, I will examine in brief two interesting First Amendment cases that are not related to immigration law. The two cases are Matal v. Tam, 582 U.S. __ (2017), and Packingham v. North Carolina, 582 U.S. __ (2017). Please follow our site closely for information on likely upcoming Supreme Court decisions that directly implicate immigration issues.