Jae Lee lived in the United States as a legal permanent resident since 1982. In 2009, he was arrested for possession of ecstasy and intent to distribute. Lee’s counsel advised him to accept a guilty plea because of the compelling case against him, assuring Lee that in doing so he would not face deportation. However, because he plead guilty to an aggravated felony, Lee was set for deportation under the Immigration and Nationality Act. Lee appealed, claiming he had ineffective counsel under the two-pronged Strickland Standard: whether counsel was ineffective and if the counsel’s actions affected the outcome of the case. Had he known he could be deported, Lee argued, he would have gone to trial.
On June 23, the Supreme Court ruled 6-2 in favor of Lee. Laura Howell and Brian R. Frazelle, both authors of amicus briefs in this case, joined us to discuss the ruling and its implications.
Brian R. Frazelle, Appellate Counsel, Constitutional Accountability Center
Laura Howell, Assistant Attorney General, Alabama Attorney General's Office
On June 22, 2017, the Supreme Court decided Maslenjak v. United States. At the close of the Bosnian civil war, Divna Maslenjak sought refugee status for herself and her family in the U.S. due to fear of persecution regarding their Serbian identity in modern-day Bosnia and the threat of reprisal against her husband, who she claimed had evaded military conscription in the Bosnian Serb militia. After the family was granted refugee status and Maslenjak became a U.S. citizen, a U.S. court convicted Maslenjak’s husband, Ratko, on two counts of falsifying claims regarding Serbian military service on U.S. government documents, since Ratko had in fact served in the Serbian military. When Ratko applied for asylum to avoid deportation, Divna Maslenjak admitted to lying about her husband’s military service and was charged with two counts of naturalization fraud. At her trial, jurors were told that a naturalization fraud conviction could be carried out for false claims in Maslenjak’s application process, even if the claims did not affect whether she was approved. Convicted on both counts, Divna Maslenjack was stripped of her citizenship. The Sixth Circuit affirmed her conviction.
By a vote of 9-0, the Supreme Court vacated the judgment of the Sixth Circuit and remanded the case. In an opinion by Justice Kagan, the Court held that (1) the text of 18 U.S.C. § 1425(a) -- which prohibits "procur[ing], contrary to law, the naturalization of any person" -- makes clear that, to secure a conviction, the federal government must establish that the defendant's illegal act played a role in her acquisition of citizenship; (2) when the underlying illegality alleged in a Section 1425(a) prosecution is a false statement to government officials, a jury must decide whether the false statement so altered the naturalization process as to have influenced an award of citizenship; and (3) measured against this analysis, the jury instructions in this case were in error, and the government's assertion that any instructional error was harmless if left for resolution on remand. Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Gorsuch filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. Justice Alito filed an opinion concurring in the judgment.
And now, to discuss the case, we have Vikrant P. Reddy, who is Senior Research Fellow at the Charles Koch Institute.
In recent years, the United Nations’ International Telecommunication Union has become an arena where governments promote rival visions of the future of the organization and, more importantly, how the Internet itself should be governed. These debates reflect a growing tension around a foundational question: to what extent can and should nation-states act to manage the flow of information within their sovereign territory? As the Internet’s importance as a driver for global economic and social growth has grown over the past decade, so too has the interest of some governments to secure for themselves a larger role in regulating the technical, economic, and policy aspects of its management.
Governments are driven by a range of objectives as they consider the future of the Internet, including access and uptake, competition policy, privacy and security, and, in some cases, regime stability. Will it be possible to accommodate some governments’ desire for a more robust role and still maintain essential democratic principles such as the free flow of information between people around the world, universal human rights, and the core belief that has driven the Internet’s exponential growth over the past decade: that users, companies, and civil society – not governments – ought to control the Internet’s future? What are the political, economic, and geopolitical factors driving Internet regulation and policies? Umair Javed moderated a discussion with Will Hudson of Google, Sally Wentworth of the Internet Society, and Patricia Paoletta of Harris, Wiltshire & Grannis to explain recent activities at the UN to influence global Internet policy.
Will Hudson, Senior Advisor for International Policy, Google Inc.
Patricia J. Paoletta, Partner, Harris, Wiltshire & Grannis LLP
Sally Wentworth, Vice President of Global Policy Development, Internet Society
On June 19, 2017, the Supreme Court decided Ziglar v. Abbasi, which was consolidated with the cases Ashcroft v. Abbasi , and Hasty v. Abbasi. Ziglar v. Abbasi was part of a series of lawsuits brought by Muslim, South Asian, and Arab noncitizens who were detained after the terrorist attacks on September 11, 2001, and treated as “of interest” in the ensuing government investigation. These plaintiffs contended, among other things, that the conditions of their confinement violated their constitutional rights to due process and equal protection. The defendants included high-level officials in the Department of Justice (DOJ) such as Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, as well as various detention officials. Some of the parties reached settlements, and the district court eventually dismissed some of the allegations against the DOJ officials for failure to state a claim. The U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiffs’ Free Exercise claims, but otherwise reversed most of the district court’s judgment. Plaintiffs, the Second Circuit held, had adequately pleaded claims for violations of substantive due process, equal protection, the Fourth Amendment, and civil conspiracy, and Defendants were not entitled to qualified immunity. Defendants then sought, and the Supreme Court granted, a petition for writ of certiorari.
By a vote of 4-2, the Supreme Court reversed in part, and vacated and remanded in part, the judgment of the Second Circuit. In an opinion by Justice Kennedy, the Court held that (1) the limited reach of actions brought under Bivens v. Six Unknown Federal Narcotics Agents informs the decision whether an implied damages remedy should be recognized in this case; (2) considering the relevant special factors in this case, a Bivens-type remedy should not be extended to the "detention policy claims" -- the allegations that the executive officials and wardens violated the detainees' due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegation that the wardens violated the Fourth and Fifth Amendments by subjecting the detainees to frequent strip searches -- challenging the confinement conditions imposed on the detainees pursuant to the formal policy adopted by the executive officials in the wake of the September 11 attacks; (3) the U.S. Court of Appeals for the 2nd Circuit erred in allowing the prisoner-abuse claim against Warden Dennis Hasty to go forward without conducting the required special-factors analysis; and (4) the executive officials and wardens are entitled to qualified immunity with respect to respondents' civil conspiracy claims.
Justice Kennedy delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which the Chief Justice and Justices Thomas and Alito joined. Justice Kennedy also delivered an opinion with respect to Part IV–B, in which the Chief Justice and Justice Alito joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justices Sotomayor, Kagan, and Gorsuch took no part in the consideration or decision of these cases.
To discuss the case, we have David B. Rivkin, who is a Partner at Baker & Hostetler LLP.