Yonas Fikre, a U.S. citizen who had emigrated from Sudan, found himself placed on the No Fly List by the FBI and unable to return to the United States from an international trip. This action followed Fikre’s having been questioned about the mosque he attended and his refusal to become an FBI informant. Having ended up in Sweden, Fikre brought suit, alleging that the government had violated his procedural rights by failing to give him sufficient notice and the ability to gain adequate redress and had improperly considered his race, national origin, and religious beliefs in putting him on the No Fly List. In his suit, Fikre sought both injunctive and declaratory relief. While the suit was pending, the government decided to remove Fikre from the list and sought dismissal of the action based on mootness.

The District Court agreed, but the Ninth Circuit reversed, holding that mootness depended upon a showing that the conduct in question cannot “reasonably be expected to recur.” The government then submitted a declaration stating that “based on the currently available information,” Fikre would not be placed on the No Fly List in the future. However, the Court of Appeals again reversed because the government, having failed to disclose the conduct that got Fikre on the list in the first place, could not demonstrate that he wouldn’t be put back on it if he engaged in the same or similar conduct in the future. In an unusual win for the Ninth Circuit, a unanimous Supreme Court, per Gorsuch, J., agreed, holding that the government had indeed failed to demonstrate that the case was moot. Deciding the case of Federal Bureau of Investigation v. Fikre, the Court held that, although its Article III authority is limited to actual cases or controversies and not to pronouncements about past actions that have no continuing effect, the government had not met that burden here. Indeed, no party, including the government, is entitled to a ruling that a case is moot merely because it asserts no present intention to engage in the conduct that had been at issue. Mootness thus depends upon demonstrable assurance, not speculation.

Wilkinson v. Garland involved a man who had been arrested and detained by immigration authorities for having overstayed his tourist visa. Situ Kamu Wilkinson applied for cancellation of removal based in part upon hardship to his U.S.-born son (“M”), who suffers from serious medical issues. To meet the hardship standard, Wilkinson had to show that M “would suffer hardship that is substantially different from or beyond that which would ordinarily be expected to result from [his] removal.” In such cases, Immigration Judges have discretionary authority to cancel removals if they first decide that the subject is eligible under the statutory criteria and, if so, whether to exercise that discretion. Here, although hardship relating to a family member is one of the eligibility criteria, the Immigration Judge held that M’s condition did not rise to the level of an exceptional hardship beyond that which ordinarily would be the result of removal.

Following affirmance by the Board of Immigration Appeals, the Third Circuit held that it didn’t have jurisdiction to review an Immigration Judge’s discretionary hardship determination. The Supreme Court’s grant posed the alternatives before it: Is the Immigration Judge’s “‘exceptional and extremely unusual’ hardship determination . . . a mixed question of law and fact reviewable under [8 U.S.C.] §1252(a)(2)(D), or [is it] discretionary and therefore unreviewable under §1252(a)(2)(B)(i).” While §1252(a)(2)(B)(i) makes unreviewable any “judgment[s] regarding the granting of [discretionary] relief,” section 1252(a)(2)(D) restores jurisdiction to review “questions of law.” Applying two earlier precedents, Guerrero-Lasprilla v. Barr, 589 U. S. 221 (2020), and Patel v. Garland, 596 U. S. 328 (2022), the Court reversed and remanded Wilkinson’s case, holding that the question of his removal presented a mixed question of fact and law that required analysis of whether the application of the statutory removal standard was consistent with the specific set of facts presented. The dissenters contended that the majority had read its precedents too broadly and that the facts in the case at bar so overwhelmed the legal component that the Immigration Judge’s conclusion should have been unreviewable.

This jurisdictional difference of opinion resulted in yet another stereotype-defying lineup (as to Trump nominees), with Justice Sotomayor delivering the Court’s opinion, which was joined by Justices Kagan, Gorsuch, Kavanaugh, and Barrett. Justice Jackson concurred, and the Chief Justice and Justices Alito and Thomas filed dissenting opinions.

As a side note, both of these cases involve the Supreme Court’s rejection of agency determinations, here with respect to national security and immigration. With the Supreme Court having decided West Virginia v. EPA and Kisor v. Wilkie, cases discussed in earlier editions of this blog, do the cases decided today add to speculation that the Court will cut back further, perhaps completely, as to agency deference when it decides Loper Bright Enterprises v. Raimondo, in which the future of Natural Resources Defense Counsel v. Chevron will be determined? Don’t bet against it.

In a more contentious matter than the two cases actually decided today, the Court, in United States v. Texas, refused an emergency stay of a Texas law authorizing the arrest and deportation of migrants. This marked a change of course in that the Circuit Justice, Justice Alito, had only a day ago stayed the statute indefinitely. As is customary in stay cases, the controlling order does not state the Court’s reasoning. However, Justice Kavanaugh joined Justice Barrett, who concurred, writing that consideration of the law was premature because the Fifth Circuit had not yet issued a reasoned opinion. Justice Sotomayor, joined by Justices Kagan and Jackson, dissented, claiming that the Court was sowing chaos in allowing the arrest law to take effect.

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