An Important "Credible Fear" Circuit Split -- To See Supreme Court Review -- After The Election Is Decided? We Think So...

Let's just drop this in here, for a time when -- after the next five to ten days -- the election decision is largely behind us. I predict the Supremes will review this Circuit split, below.

It will decide what -- and when -- people without papers (alleging credible fear of torture or abuse, if "refouled") must file, to remain in the country, and engage in a due process series of hearings, over months or years. Here's the very fine SCOTUS Blog, on it all:

. . .[B]ecause of [immigration] agency backlogs, those administrative proceedings often last long periods of time -- sometimes months or even years. The asylum officer’s decision to reinstate the deportation order can be reviewed by an immigration judge, whose ruling in turn is reviewed by the Board of Immigration Appeals, which in turn is subject to review by the regional federal court of appeals. The review provision states that the noncitizen’s “petition for review must be filed not later than 30 days after the date of the final order of removal.”

There are two circuit splits here. First: Most courts of appeals have held that they can review the BIA’s decision to deny withholding deportation if the petition for review is filed within 30 days of the immigration judge’s decision upholding the reinstated deportation. But two appeals courts have held that the 30-day period runs from when the asylum officer determines that the prior deportation order should be reinstated, well before the immigration judge’s review.

Second: The courts of appeals are divided about whether the 30-day limit is a constraint that they are powerless to disregard, or if it is instead simply a “claims processing rule” to which exceptions can sometimes be made.

The government concedes that the there are splits on both issues, and it argues that the noncitizens here are correct both that the 30-day period runs from BIA’s final affirmance and that it is a claims processing rule subject to exceptions. It nonetheless argues that the court does not need to grant review now because the justices recently held in Harrow v. Department of Defense that a similar filing deadline is not jurisdictional, noting that “ ‘most time bars are nonjurisdictional,’ even when ‘framed in mandatory terms.’”

In addition, the government argues that review would be premature because the courts that have held that the 30-day period runs from the asylum officer’s decision to reinstate deportation appear to be reconsidering that rule, and the government promises to “waive the application of the 30-day deadline” in those cases anyway. Thus, the government maintains it would be enough to grant the petitions, vacate the adverse court of appeals judgments below, and remand for further consideration in light of Harrow.

The three noncitizens seeking Supreme Court review argue that the court should take up these issues notwithstanding the government’s concessions, and two explicitly argue that their cases would be the best vehicle if the Supreme Court decides to do so. But all agree that the court at minimum should follow the government’s advice and GVR. . . .

Now you know -- and onward to big things, both tomorrow and Tuesday! Grin. . . .

नमस्ते