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University of California, Davis
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UC Davis Legal Studies Research Paper Series
Research Paper No. 305
August 2012
Judicial Remands of Immigration Cases:
Lessons in Administrative Discretion from INS v. Cardoza-Fonseca
Kevin R. Johnson & Serena Faye Salinas
This paper can be downloaded without charge from
The Social Science Research Network Electronic Paper Collection:
http://ssrn.com/abstract=2135074
Electronic copy available at: http://ssrn.com/abstract=2135074
FEBRUARY 2012 DRAFT
JUDICIAL REMANDS OF IMMIGRATION CASES:
LESSONS IN ADMINISTRATIVE DISCRETION FROM INS V. CARDOZA-FONSECA
KEVIN R. JOHNSON * & SERENA FAYE SALINAS **
INTRODUCTION
One might not imagine that there could be much to say about the topic of remands, that is
when a court reverses or vacates a decision and remands the case to a lower court or
administrative agency for further proceedings. However, the first remand symposium in the
2004 Arizona State Law Journal offered multiple insights into the nature of remands and
garnered considerable attention. 1 It included contributions that investigated an array of remand
situations, including those involving punitive damages, 2 administrative law, 3 criminal
*
Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies,
University of California at Davis School of Law; A.B., University of California, Berkeley; J.D.,
Harvard University. He is one of the editors of the ImmigrationProf blog,
http://lawprofessors.typepad.com/immigration/. Thanks to the Arizona State Law Journal for
inviting me to participate in the symposium held in March 2012. This paper was prepared for
that symposium.
**
J.D. expected 2012, University of California, Davis; B.A., UCLA. I am indebted to
Dean Kevin R. Johnson for his mentorship and unyielding commitment to social justice, both of
which inspire me in my own work. I am grateful to the Arizona State Law Journal for allowing
me to contribute to this symposium.
1
See Michael A. Berch, We’ve Only Just Begun: The Impact of Remand Orders on
American Jurisprudence, 36 ARIZ. ST. L.J. 493 (2004).
2
See Erwin Chemerinsky & Ned Miltenberg, The Need to Clarify the Meaning of U.S.
Supreme Court Remands: The Lessons of Punitive Damages’ Cases, 36 ARIZ. ST. L.J. 513
(2004).
3
See Daniel B. Rodriguez, Of Gift Horses and Great Expectations: Remands Without
Vacatur in Administrative Law, 36 ARIZ. ST. L.J. 599 (2004).
1
Electronic copy available at: http://ssrn.com/abstract=2135074
sentencing, 4 and international tribunals. 5 Indeed, one article looked at an incredibly important
practical issue about which many lawyers and law professors are familiar: when the Supreme
Court grants a petition for writ of certiorari, vacates the lower court judgment, and remands the
case for further consideration. 6 Despite what some critics say about legal scholarship, 7 the
symposium did not focus on esoterica, i.e., topics that only a law professor could love.
In its wisdom, the editors of the Arizona State Law Journal have seen fit to hold an
encore of the original remand symposium. As frequently is the case, it unquestionably will be
hard to replicate the success of the original. However, this symposium will no doubt offer novel
observations from a diversity of perspectives about the operation and impacts of judicial
remands.
Our contribution to this symposia considers the lessons that can be learned from the
remand by a reviewing court of an immigration ruling by an administrative agency. We use as
4
See Tracy Friddle & Jon M. Sands, “Don’t Think Twice, It’s All Right”: Remands,
Federal Sentencing Guidelines & the Protect Act – A Radical “Departure”?, 36 ARIZ. ST. L.J.
527 (2004).
5
See John Cary Sims, Compliance Without Remands: The Experience Under the
European Convention on Human Rights, 36 ARIZ. ST. L.J. 639 (2004).
6
See Shaun P. Martin, Gaming the GVR, 36 ARIZ. ST. L.J. 551 (2004); see, e.g., Ikharo v.
Holder, 132 S. Ct. ____ (2012) (granting petition for writ of certiorari, vacating judgment, and
remanding for further proceedings in light of Judulang v. Holder, 132 S. Ct. 476 (2011), a
decision that reversed a removal order of a lawful permanent resident who had a criminal
conviction); City of Hazleton v. Lozano, 131 S. Ct. 2958 (2011) (granting petition for writ of
certiorari, vacating judgment, and remanding court of appeals decision finding most of local
immigration regulation preempted by federal law for further consideration in light of United
States v. Whiting, 131 S. Ct. 1968 (2011), a decision upholding Arizona law allowing revocation
of business license of employers of undocumented immigrants in the face of a federal
preemption challenge).
7
See, e.g., Harry T. Edwards, The Growing Disjunction Between Legal Education and the
Legal Profession, 91 MICH. L. REV. 34 (1992); Richard Brust, The High Bench & The Ivory
Tower, ABA J., Feb. 2012, at 50.
2
Electronic copy available at: http://ssrn.com/abstract=2135074
the cornerstone of our analysis the Supreme Court’s path-breaking decision in INS v. CardozaFonseca, 8 which affirmed a court of appeals’ reversal of a removal order by the Board of
Immigration Appeals with instructions for the Board, on remand, to apply the proper legal
standard to a claim for asylum. 9
Asylum, the substantive issue at the core of INS v. Cardoza-Fonseca, is a particularly
high stakes claim under American law. The noncitizen claims that, if deported to his or her
native land, he or she will suffer likely persecution — including possible imprisonment, torture,
or even death — because of their race, religion, nationality, political opinion, and related
grounds. 10 The decision in an asylum case determines as a legal matter whether the noncitizen
will be allowed to remain in the United States or involuntarily returned to his or her homeland.
Similar to a death penalty case, an asylum decision can literally have life or death consequences
for the noncitizen. 11
After a quarter century, the Supreme Court’s seminal decision in INS v. Cardoza-Fonseca
remains at the heart of modern asylum and refugee law. It almost unquestionably is the leading
American decision in the field. 12 Most relevant to a symposium analyzing remands, Cardoza-
8
480 U.S. 421 (1987).
9
See infra text accompanying notes _____.
10
See infra text accompanying notes _____.
11
See INS v. Cardoza-Fonseca 480 U.S. 421, 449 (1987) (“Deportation is always a harsh
measure; it is all the more replete with danger when the alien makes a claim that he or she will be
subject to death or persecution if forced to return to his or her home country.”).
12
Other important Supreme Court decisions on asylum and refugee matters include EliasZacarias v. INS, 502 U.S. 478 (1992) (interpreting statutory requirement for asylum that fear of
persecution be “on account of ˮ one of enumerated grounds for eligibility) and Sale v. Haitian
Centers Council, Inc., 509 U.S. 155 (1993) (rejecting legal challenges to U.S. government’s
controversial policy of interdicting Haitians fleeing political violence on the high seas and
returning them to face possible persecution in Haiti).
3
Fonseca is a notable example of the U.S. government in effect abandoning a removal case upon
remand by the highest court in the land. 13 There are other prominent examples as well,
suggesting that it is not an outlier. 14
Much scholarly commentary in recent years has been critical of the tightening
relationship between criminal law and immigration law, both in criminalizing violations of the
immigration laws and deporting noncitizens caught up in the American criminal justice system.
Needless to say, the increasing use of the criminal law in the enforcement of the U.S.
immigration laws has grabbed considerable scholarly attention. 15 Indeed, a new genre of
13
See infra text accompanying notes _ __.
14
See, e.g., infra text accompanying note
in Landon v. Plasencia, 459 U.S. 21 (1982)).
(discussing Supreme Court decision
15
See, e.g., Symposium, Criminal Law and Immigration Law: Defining the Outsider, 58
UCLA L. REV. 1389 (2011); Devon W. Carbado & Cheryl I. Harris, Undocumented Criminal
Procedure, 58 UCLA L. REV. 1543 (2011); Jennifer M. Chacón, Unsecured Borders:
Immigration Restrictions, Crime Control and National Security, 39 CONN. L. REV. 1827 (2007);
Gabriel J. Chin & Marc L. Miller, The Unconstitutionality of State Regulation of Immigration
Through Criminal Law, 61 DUKE L.J. 251 (2011); Teresa Miller, Citizenship and Severity:
Recent Immigration Reforms and the New Penology, 10 GEO. IMM. L.J. 611 (2003); Yolanda
Vazquez, Perpetuating the Marginalization of Latinos: A Collateral Consequence of the
Incorporation of Immigration Law into the Criminal Justice System, 54 HOW. L. J. 639 (2011).
In recent years, the Supreme Court has decided an increasing number of cases involving
immigrants facing removal on the basis of criminal convictions. See, e.g., Kawashima v. Holder,
132 S. Ct. ____ (2012) (holding that convictions for filing false corporate tax claims constituted
an “aggravated felony” and subjected immigrants to removal); Judulang v. Holder, 132 S. Ct.
476 (2011) (deciding that lawful permanent residents with a criminal conviction was eligible for
relief from removal); Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) (to same effect); see
also Padilla v. Kentucky, 130 U.S. 1473 (2010) (holding that counsel in criminal proceedings has
an obligation to inform noncitizen defendant of immigration consequences, including possible
removal, of a plea bargain and criminal conviction).
4
cutting-edge immigration law scholarship -- “crimmigration” law -- has emerged from these
developments. 16
In this Article, we attempt to sketch out an important disjunction between immigration
law and criminal law. 17 A state criminal conviction that is vacated by a higher court is most
likely to be retried on remand. The reason is painfully simple: a local district attorney is not
inclined to allow a criminal case that has been reversed to languish on remand without further
proceedings (and thus let a criminal suspect go free). 18 Political pressures on prosecutors to
punish a perceived criminal are likely to be at their strongest at the local level where the crime
was committed. Local prosecutors’ offices are ordinarily headed by people who are directly
politically accountable to local citizens, usually a district attorney or the equivalent who must run
for office. 19 Put simply, a local district attorney will be held accountable at the polls if perceived
by the public as not zealously prosecuting serious criminal offenders. Especially with respect to
serious crimes, a crime victim and family, as well as public opinion in the community, will tend
16
See Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power,
56 AM. U.L. REV. 367 (2006); Juliet P. Stumpf, Doing Time: Crimmigration Law and the Perils
of Haste, 58 UCLA L. REV. 1705 (2011); crImmigration blog, available at
http://crimmigration.com/.
17
There are other legal dissimilarities, of course, between criminal and removal
proceedings. A critically important one is that the courts have characterized removal as a “civil”
proceeding, which means that a noncitizen lacks the procedural protections, such as being
guaranteed legal representation, available to criminal defendants. See Daniel Kanstroom,
Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad
Cases, 113 HARV. L. REV. 1889, 1920-26 (2000); Peter L. Markowitz, Deportation Is Different,
13 U. PA. J. CONST’L L. 1299 (2011); see also Gabriel J. Chin, Illegal Entry as Crime,
Deportation as Punishment: Immigration Status and the Criminal Process, 58 UCLA L. REV.
1417 (2011) (analyzing carefully the relevance of immigration status of defendant to criminal
justice system).
18
See infra text accompanying notes
19
See infra text accompanying notes __
___.
.
5
to place great pressure on local prosecutors to prosecute the alleged offender both in the first
instance and on remand.
In contrast, the federal government, through Congress and the Executive Branch,
regulates immigration on a national level. 20 The political pressures on the system for removal of
individual noncitizens from the United States in no way resemble the kind of direct, localized
political pressure on local criminal prosecutors. There generally is no direct and specific
political pressure, especially like that emerging from the community in which a crime was
committed, in the structure of the U.S. immigration bureaucracy. Nor is there evidence,
whatever administrative law theorists might claim generally, that a president, who oversees the
operation of the modern administrative state, is generally elected based on the prosecution of
individual removal cases. 21 That is the case, even though the general enforcement of the U.S.
20
See De Canas v. Bica, 424 U.S. 351, 354 (1976) (stating that the power to regulate
immigration “is unquestionably exclusively a federal power”); see also Chamber of Commerce
v. Whiting, 131 S. Ct. 1968, 1974 (2011) (quoting language from De Canas v. Bica).
In recent years, the scope of federal power over immigration regulation has been
contested by a number of states passing their own immigration enforcement laws, with the state
of Arizona’s possibly being the most well-known (and copied by a number of other states). See,
e.g., Arizona v. United States, 641 F.3d 339 (9th Cir.), cert. granted, 132 S. Ct. 845 (2011);
United States v. Bentley, U.S. Dist. LEXIS 112362 (N.D. Ala. Sept. 28, 2011) (Alabama);
Georgia Latino Alliance for Human Rights v. Deal, 2011 U.S. Dist. LEXIS 69600 (N.D. Ga.
June 27, 2011) (Georgia); Complaint, United States v. Haley, No. 2:11- CV-02779 CD. S.C. Oct.
31, 2011) (South Carolina); see also Michael J. Wishnie, The Struggle for Balance in U.S.
Immigration Policy 72 U. PITT. L. REV. 431, 440 (2011) (“[T]here has been an undeniable
explosion of immigration-related policymaking at the state and local level.”).
21
But see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
865-66 (1984) (justifying judicial deference to the interpretation of an ambiguous statute by an
administrative agency on the grounds that the President is politically accountable to the
electorate). For criticism of the political accountability rationale for Chevron deference, see Lisa
Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative
State, 78 N.Y.U. L. REV. 461, 492-515 (2003); Cynthia R. Farina, The Consent of the Governed:
Against Simple Rules for a Complex World, 72 CHI.-KENT L. REV. 987, 1022 (1997); Nina A.
Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 769-77 (2004); Richard J. Pierce
6
immigration laws can be a hot-button political issue. 22 Nor are the attorneys of the U.S.
government who pursue removal cases subject to a direct check through the ballot box. 23
Part I of this Article considers the leading Supreme Court decision in INS v. CardozaFonseca and analyzes the failure of the U.S. government on remand to seek to remove the
asylum-seeker from the United States. Part II identifies important distinctions between the
treatment of removal and criminal cases on remand, and analyzes why there are significant
differences about what might occur on remand in those two types of cases.
I.
INS V. CARDOZA-FONSECA: LOST ON REMAND
With considerable fanfare, Congress forever transformed U.S. immigration law in
passing the Refugee Act of 1980. 24 The Act, for the first time in American history, created a
Jr., Democratizing the Administrative State, 48 WM. & MARY L. REV. 559, 563-65 (2006); Mark
Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing
Agency Interpretations of Statutes, 73 TEX. L. REV. 83, 97-104 (1994).
22
Political leaders who support the enactment of tough state immigration enforcement
legislation, for example, have accused President Obama of failing to enforce the U.S.
immigration laws. See, e.g., Anne E. Kornblut & Spencer S. Hsu, Ariz. Governor Signs Tough
Immigration Law, WASH. POST, Apr. 24, 2010, at Al (reporting that Arizona governor signed
state immigration enforcement law because she claimed that the U.S. government had failed to
enforce the law and in effect had ceded immigration enforcement to the states).
23
See infra text accompanying note and note _______.
24
Pub. L. No. 96-212, 94 Stat. 102 (1980). See generally Deborah E. Anker & Michael H.
Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 SAN DIEGO
L. REV. 9 (1981) (providing a detailed summary of the legislative history of the Refugee Act of
1980).
7
form of humanitarian relief known as “asylum” for persons fleeing political, religious, racial,
nationality, and related forms of persecution in their native lands. 25
As with many new laws, the courts required time to sort out various questions about the
interpretation and application of the Refugee Act. 26 Consequently, for much of its first decade of
existence, the immigration bureaucracy and the courts of appeals dutifully fine-tuned the
requirements for eligibility for relief. 27
An important foundational question that spawned considerable litigation involved the
relative evidentiary burdens to prove eligibility for two distinct forms of relief in the Immigration
& Nationality Act for noncitizens who fear persecution -- asylum and withholding of deportation
(now referred to under U.S. immigration law as “withholding of removal”). 28 Both forms of
relief, if granted, allow noncitizens to remain in the United States rather than be deported to their
25
See Immigration & Nationality Act (INA) §§ 208(a) (asylum), 241(b)(3) (withholding of
removal), 8 U.S.C. §§ 1158(a), 1231(b)(3).
26
Some questions continue to percolate in the courts, such as the contours of the
“membership in particular social group” category of eligibility for relief. Compare Malonga v.
Mukasey, 546 F.3d 546, 554 (8th Cir. 2008) (considering “social visibility” of a group as a factor
in determining whether an applicant is a member of a “particular social group”), with Gatimi v.
Holder, 578 F.3d 611, 616 (7th Cir. 2009) (Posner, J.) (rejecting “social visibility” as a
requirement for membership in a “particular social group”). See also Lauren Michelle Ramos,
Nate, A New Standard For Evaluating Claims of Economic Persecution Under the 1951
Convention Relating to the States of Refugees, 44 VAND. J. TRANSNAT’L L. 499, 507-12 (2011)
(analyzing difference of opinion among courts about when economic deprivation constitutes
“persecution” for purposes of asylum and withholding relief). See generally KAREN MUSALO,
JENNIFER MOORE, & RICHARD A. BOSWELL, REFUGEE LAW AND POLICY (4th ed. 2011)
(compiling U.S. and other asylum and refugee law cases).
27
See, e.g., Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir. 1985); Bolanos-Hernandez v.
INS, 749 F.2d 1316 (9th Cir 1984); Saballo-Cortez v. INS, 761 F.2d 1259 (9th Cir. 1984);
Carvajal-Munoz v. INS, 743 F.2d 562 (7th Cir. 1984); Chavarria v. United States Dep’t of
Justice, 722 F.2d 666 (11th Cir. 1984); Reyes v. INS, 693 F.2d 597 (6th Cir. 1982) (per curiam);
McMullen v. INS, 658 F.2d 1312 (9th Cir. 1981).
28
See INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).
8
native countries. 29 Specifically, asylum and withholding are limited to noncitizens who fled
actual, or possess a fear of future, persecution on account of their race, religion, nationality,
political opinion, or membership in a particular social group, if returned to their homeland. 30
The all-important threshold question was whether asylum and withholding of deportation
placed identical, or different, evidentiary burdens on the noncitizen seeking relief. In the 1984
decision of Stevic v. INS, 31 the Supreme Court held that, to establish eligibility for withholding of
deportation, a noncitizen must establish a “clear probability” of persecution on account of race,
religion, political opinion, nationality, or membership in a particular social group. Put somewhat
differently, in order to prevail on a withholding claim, the noncitizen must establish that it was
“more likely than not” that he or she would be persecuted if returned home. 32 This burden of
proof requires a showing of a greater than 50% chance of persecution and can prove difficult for
the average applicant to establish.
29
However, asylum and withholding of removal differ in a number of important ways. An
asylee can become a lawful permanent resident, while a noncitizen granted withholding cannot
and instead can be returned to his or her native country once safe to do so. In addition, even
when eligibility is established, asylum remains within the discretion of the immigration court; in
contrast, if the requisite burden is met, withholding of removal is mandatory. For a summary of
the distinctions between the two forms of relief, see STEPHEN H. LEGOMSKY & CRISTINA M.
RODRÍGUEZ, IMMIGRATION AND REFUGEE LAW AND POLICY 892-94 (5th ed. 2009).
30
See INA §§ 101(a)(42), 241(b)(3), 8 U.S.C. §§ 1101(a)(42), 1231(b)(3).
31
467 U.S. 407 (1984).
32
Id. at 429-30; see, e.g., Dons v. Attorney General, 638 F.3d 223, 228 (3d Cir. 2011);
Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2009).
9
After the Court’s decision INS v. Stevic, a split developed among lower courts on the
question whether the relatively stringent clear probability standard for withholding of deportation
claims also applied to claims for asylum. 33
A. The Ninth Circuit
In Cardoza-Fonseca v. INS, 34 the U.S. Court of Appeals for the Ninth Circuit reviewed
an appeal of the ruling of the Board of Immigration Appeals (BIA) denying asylum and
withholding of deportation to Luz Marina Cardoza-Fonseca. She claimed to have fled possible
persecution by the leftist Sandinista government in Nicaragua. 35
In its ruling denying Cardoza-Fonseca relief, the BIA had applied the same “clear
probability” of persecution standard from INS v. Stevic to both Cardoza-Fonseca’s withholding
of deportation and asylum claims. 36 The court of appeals rejected the Board’s conclusion that
the standards were identical; it instead ruled that the statutory language providing for asylum,
which requires that the asylum-seeker establish a “well-founded fear of persecution” on account
33
See INS v. Cardoza-Fonseca, 480 U.S. at 426 n.2; see also Shane M. Sorenson,
Immigration and Naturalization Service v. Cardoza-Fonseca: Two Steps in the Right Direction, 3
AD. L.J. 95, 96 (1989) (“Since the passage of the Refugee Act, lower federal courts have
attempted to determine whether the standards of proof for the two remedies are different. Not
only did court conclusions differ among circuits, but over time, positions varied within the
circuits, as well.”).
34
See Cardoza-Fonseca v. INS, 767 F.2d 1448 (9th Cir. 1985).
35
Francisca Rosa Arguello-Salguera, another asylum-seeker from Nicaragua, also was a
party to the appeal; her appeal raised similar legal issues as Cardoza-Fonseca’s appeal. See id. at
1450.
36
See id.; see also Matter of Acosta, 19 I. & N. Dec. 211, 229 (BIA 1985) (“conclud[ing]
that the standards for asylum and withholding of deportation are not meaningfully different and,
in practical application, converge”).
10
of race, religion, nationality, political opinion, or membership in a particular social group, 37
created a “more generous” standard than the “clear probability” standard for withholding. 38
After reaching that conclusion, the court stated that
[w]e do not believe that we should attempt to apply the “well-founded fear” standard to
the instant claims before the Board has performed that task itself. Cases in which the
Board applies too strict a standard and denies relief on that basis must be returned to the
Board for reconsideration and not adjudicated de novo by the courts. Accordingly, we
reverse and remand the Board’s determinations regarding the asylum claims so that the
Board may evaluate those claims under the proper legal standard. 39
B. The Supreme Court
The Supreme Court affirmed the Ninth Circuit’s decision. 40 After an exhaustive review
of the statutory text, legislative history, relevant international law, and agency practice, 41 the
Court agreed with the court of appeals that the well-founded fear standard for asylum is “more
generous” than the “clear probability” of prosecution standard necessary to establish eligibility
for withholding of deportation. 42 The Court expressly rejected the U.S. government’s argument
37
INA § 101(a)(42), 8 U.S.C. § 1101(a)(42).
38
See Cardoza-Fonseca v. INS, 767 F.2d at 1451.
39
Id. at 1455 (emphasis added).
40
INS v. Cardoza-Fonseca, 480 U.S. 421, 458 (1987).
41
See id. at 427-43.
42
See id. at 448.
11
that it must defer to the Board of Immigration Appeals’ interpretation of the asylum provisions
of the Immigration and Nationality Act. In so doing, the Court emphasized that “[e]mploying
traditional tools of statutory construction, we have concluded that Congress did not intend the
two standards to be identical.” 43
By affirming the court of appeals’ decision, the Supreme Court effectively instructed the
case to be remanded to the Board of Immigration Appeals so that it could evaluate CardozaFonseca’s asylum claim under the proper legal standard. 44 Despite the Court’s mandate, the case
apparently never made its way back to the Board for application of that standard.
B.
The Impact
INS v. Cardoza-Fonseca 45 was a revolutionary case, and not only because it arose out of
the violent political struggles of Central America. From an immigration and refugee law
perspective, the Court in Cardoza-Fonseca made clear a basic element for proving an asylum
claim –– that an asylum applicant has to satisfy a more generous evidentiary burden than to
prevail on a claim to withholding of deportation. 46 Although tinkering at the margins, 47
Congress has not intervened to meaningfully change the fundamental requirements for the two
forms of relief in the 25 years since the Court decided Cardoza-Fonseca.
43
Id. at 457 (footnote omitted).
44
See id. at 458.
45
480 U.S. 421 (1987).
46
See supra text accompanying notes ____.
47
See generally LEGOMSKY & RODRÍGUEZ, supra note ____, at 892-1094 (reviewing
changes in U.S. law of asylum over the last several decades, including but not limited to,
expedited removal of noncitizens with asylum claims deemed to be “frivolous,” greatly increased
detention of asylum-seekers, and limitation on the authorization to work for asylum-seekers).
12
Besides being a major asylum and refugee decision, INS v. Cardoza-Fonseca proved to
be a significant administrative law decision. It offers an important elaboration on what is known
as the Chevron deference doctrine, which requires deference by the courts to the interpretation of
a statute by an administrative agency. 48 While the Court in Chevron and its progeny emphasized
that courts generally should defer to certain agency interpretations of the law that Congress has
entrusted to the agency to interpret, 49 Cardoza-Fonseca made it clear that such deference would
not be blind. Using “traditional tools of statutory construction,” courts instead must reject an
interpretation contrary to the meaning of the statute. 50
48
See Chevron U.S.A Inc. v. Natural Resources Defense Council, 467 U.S. 837, 865-66
(1984).
For analysis of the administrative law implications of Cardoza-Fonseca, see Kathryn A.
Watts, From Chevron to Massachusetts: Justice Steven’s Approach to Securing the Public
Interest, 43 U.C. DAVIS L. REV. 1021, 1044-46 (2010); William N. Eskridge, Jr. & Lauren E.
Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory
Interpretations From Chevron to Hamdan, 96 GEO. L. J. 1083, 1087-88 (2008); see also Randy J.
Kozel & Jeffrey A. Pojanowski, Administrative Change, 59 UCLA L. REV. 112, 145 (2001)
(“Courts also may withhold deference if an agency’s interpretation involves a ‘pure’ question of
statutory construction. The canonical example is INS v. Cardoza-Fonseca, in which the court
refused to defer to the government’s interpretation of the term ‘well-founded fear of
persecution.’”) (emphasis added) (footnote omitted); Jody Freeman, Extending Public Law
Norms Through Privatizations, 116 HARV. L. REV. 1285, 1321 n.145 (2003) (“Notwithstanding
Chevron deference, the Supreme Court still invalidates agency interpretations of law with
regularity.”) (citing, inter alia, INS v. Cardoza-Fonseca).
49
See, e.g., INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (holding that courts ordinarily
should defer to agency interpretation of immigration statute); INS v. Abudu, 485 U.S. 94, 100
(1988) (stating that deference by courts to the agency in immigration appeals was necessary
because of the “especially sensitive political functions that implicate questions of foreign
relations”).
50
See, e.g., Negusie v. Holder, 555 U.S. 511, 518-20 (2009) (declining to defer to agency’s
interpretation of immigration statute because the agency had misread relevant Supreme Court
precedent).
The Cardoza-Fonseca decision also continued an ongoing debate over the proper mode
of interpretation of a law passed by Congress, namely the judicial consideration of legislative
13
For purposes of our analysis, one interesting twist to INS v. Cardoza-Fonseca merits
particular attention. An issue arose in connection with the Court’s consideration of the
possibility that Cardoza-Fonseca’s asylum claim was moot and the appeal therefore should be
dismissed. The Court acknowledged that Cardoza-Fonseca might be eligible to become a lawful
permanent resident under the “amnesty” program created under the Immigration and Reform
Act, which Congress had passed only one year (1986) before the Court decided the case. 51
However, because the Executive Branch at the time the Court was deciding the case had not yet
established procedures for legalization under the new Act, it was uncertain whether CardozaFonseca would be eligible for legalization. 52 The Court further recognized that, although there
was an eighteen month waiting period for legalization, Cardoza-Fonseca could obtain lawful
permanent resident status in a shorter period of time (one year) if she were granted asylum. 53
Based on these facts, the Court held that Cardoza-Fonseca’s asylum claim was not moot and
proceeded to decide the merits of the case. 54
history and other materials in addition to the text of the statute. Consideration of materials
beyond the plain meaning of the statute long has been an issue of debate among Justices on the
Court. See generally William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621
(1990) (identifying and analyzing the Court’s increasing focus on the text of a statute as the sole
touchstone for statutory interpretation).
51
See Cardoza-Fonseca, 480 U.S. at 426 n.3. The legalization program created by the
Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (1986) was
known as an “amnesty” for eligible undocumented immigrants. See T. ALEXANDER ALEINIKOFF
ET AL. IMMIGRATION AND CITIZENSHIP PROCESS AND POLICY 178 (6th ed. 2008); LEGOMSKY &
RODRÍGUEZ, supra note ___, at 1158.
52
See Cardoza-Fonseca, 480 U.S. at 426 n.3.
53
See id.
54
See id.
14
After the remand by the Supreme Court, the U.S. government, without explanation, failed
to push forward removal proceedings against Cardoza-Fonseca before the Board of Immigration
Appeals. Although we cannot know for certain, it perhaps was hesitant to proceed on remand for
several reasons. Most importantly, to seek Cardoza-Fonseca’s removal might waste precious
prosecutorial resources. As recognized in the Court’s mootness analysis, Cardoza-Fonseca
might well be able to regularize her immigration status through means other than asylum. As it
turned out, she ultimately obtained legalization, 55 thereby suggesting that the government’s
calculation was correct.
Alternatively, the INS may have been hesitant to have the Board decide the merits of the
case and the possible creation of bad precedent for other asylum cases. Cardoza-Fonseca
claimed persecution by a leftist government in Nicaragua on poor terms with the U.S.
government, 56 a kind of case that one might suspect her to win. 57 At the time, asylum cases were
flooding the courts and many observers were concerned with perceived abuse of the asylum
process. 58
55
See Letter from Dana Marks, Immigration Judge, Executive Office of Immigration
Review San Francisco Immigration Court, to Serena F. Salinas (Oct. 3, 2011) (on file with
author); Letter dated Oct. 4, 2011 from Teresa Bright, to Serena F. Salinas (on file with author).
It appears that Cardoza-Fonseca dropped “Fonseca” from her surname, and today lives in Reno,
Nevada. See LexisNexis Search, first-name (luz) last-name (cardoza) state (ALL) radius (30)
(Oct. 31, 2011).
56
See INS v. Cardoza-Fonseca, 480 U.S. at 424-25.
57
See Kevin R. Johnson, A “Hard Look” at the Executive Branch’s Asylum Decisions,
1991 UTAH L. REV. 279 (contending that foreign policy considerations of the U.S. government
appear to impermissibly influence agency asylum decisions and therefore require “hard look”
scrutiny of those decisions by reviewing court).
58
See David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of
Bohemia, 138 U. PA. L. REV. 1247, 1249-52 (1990).
15
INS v. Cardoza-Fonseca is not the only famous immigration case that lost its way on
remand from the Supreme Court. Consider Landon v. Plasencia, 59 which extended minimal due
process protections to a lawful permanent resident, with a U.S. citizen husband and children. 60
Plasencia drove from Los Angeles to Mexico for a weekend and, upon her return, was placed in
“exclusion proceedings,” 61 which at the time offered quite limited procedural protections to the
immigrant, to determine whether she should be barred from returning to the United States.
Among other alleged due process violations, Plasencia objected to the fact that the U.S.
government set the hearing for her exclusion a mere 24 hours after her apprehension at the
border. 62 This was precious little time to retain an attorney and collect evidence for a legal
proceeding that could change her entire life.
After the Court’s decision, the U.S. government apparently did not seek to remove Maria
Plasencia from the country:
59
459 U.S. 21 (1982).
60
The Supreme Court had previously held that even long-term lawful permanent residents
seeking to return to the United States lacked basic due process rights, including the right to a
hearing. See Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); see also United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (holding that noncitizen seeking
to join U.S. citizen husband in the United States did not have the right to a hearing to test the
grounds for the U.S. government’s denial of her admission into the country to join her husband);
Evelyn H. Cruz, Double the Injustice, Twice the Harm: The Impact of the Board of Immigration
Appeals’s Summary Affirmance Procedures, 16 STAN. L. & POL’Y REV. 481, 485-86 (2005)
(analyzing Court’s due process decisions in Knauff, Mezei, and Landon v. Plasencia); Charles P.
Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and
Ignatz Mezei, 143 U. PA. L. REV. 933 (1995) (reviewing Knauff and Mezei and arguing for
greater due process protections for noncitizens seeking entry into the United States.)
61
In 1996, Congress consolidated “exclusion” and “deportation” proceedings into one
uniform “removal proceeding.” See Immigration and Nationality Act § 240A, 8 U.S.C. §1229a.
62
See Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural
Surrogates for Substantive Constitutional Rights, 92 COLUM. L. REV. 1625, 1652-56 (1992);
Michael Scaperlanda, Partial Membership: Aliens and the Constitutional Community, 81 IOWA
L. REV. 707, 744-45 (1996).
16
Landon v. Plasencia ended with little more than a whimper. On remand from the
Supreme Court, the Ninth Circuit sent the case back to the district court, where the case
effectively ended. The INS appears never to have sought to remove Maria Plasencia
from the country. Thus it never had to take on the unenviable task [given the extreme
facts of the case, including noticing a hearing to bar her entry into the United States, and
return to her family of U.S. citizens, within 24 hours of apprehension] of trying to
persuade a court that her due process rights had not been violated . . . .
. . . . As far as [Plasencia’s attorneys] know, Maria, who had been paroled into the
United States pending appeal of her case, simply continued her life as a lawful permanent
resident. [One of her attorneys] suspects that, given the [serious alien] smuggling
charges made against her [in the exclusion proceedings], Maria might have experienced
legal problems had she tried to naturalize [and become a U.S. citizen]. Consequently, she
may still be a lawful permanent resident even after living more than thirty years in the
United States.
The government presumably decided not to proceed against Maria because of the
pro-immigrant due process law that the courts might have created if they had addressed
her due process claims. The hasty proceedings against a long-term lawful permanent
resident with a citizen husband and four children lawfully in the United States, and who
did not pose a serious risk of danger to the community, probably would not have survived
constitutional scrutiny, as the Supreme Court strongly hinted. In any event, had the
[Immigration and Naturalization Service] persisted in trying to exclude Maria Plasencia
[from the United States], she might have obtained discretionary relief under former
Immigration & Nationality Act § 212(c), repealed in 1996, which required seven years of
17
residence in the country. The time consumed by her appeals . . . satisfied the time
requirement for this form of relief. 63
In the end, the government does not appear to have made any effort to remove Plasencia
from the United States. This is the case even though “alien smuggling,” the ground on which the
U.S. government sought to exclude Plasencia from the country, has long been viewed as a
serious violation of the U.S. immigration laws and can subject a lawful permanent resident to
removal from the United States. 64
It would appear at first glance that the noncitizen benefits if the U.S. government decides
not to press removal proceedings on remand. However, noncitizens who are not formally
awarded relief from removal may live in a kind of legal limbo. This may well be the case for
Plasencia since the Supreme Court decided her case. 65 The government could always re-initiate
removal proceedings against a noncitizen. 66 Plasencia, for example, runs the risk of being
removed if she ever attempts to become a U.S. citizen and, barred from citizenship, can never
63
Kevin R. Johnson, Maria and Joseph Plasencia’s Lost Weekend: The Case of Landon v.
Plasencia, in IMMIGRATION STORIES 221, 238-39 (David A. Martin & Peter H. Schuck eds.,
2005) (emphasis added).
64
See, e.g., United States v. Cortez, 449 U.S. 411 (1981) (reviewing criminal convictions
for the transportation of undocumented persons across the U.S./Mexico border); Immigration and
Nationality Act § 237(a)(1)(E)(i), 8 U.S.C. § 1227(a)(1)(E)(i) (providing that noncitizen who
participated in any way in the smuggling of aliens is subject to removal).
65
See, e.g., Daniel Gonzalez, Illegal Immigration Deportation Policy Comes Under Fire,
ARIZ. REP., Jan. 21, 2012 (reporting about undocumented immigrant who the government
decided not to pursue removal proceedings against but “remains in the country without legal
status and could still be deported. She does not qualify for a work permit.”).
66
Cf. AMERICAN IMMIGRATION LAWYERS ASS’N AND AMERICAN IMMIGRATION COUNCIL,
HOLDING DHS ACCOUNTABLE ON PROSECUTORIAL DISCRETION (Nov. 2011), available at
http://www.aila.org/content/default.aspx?docid=37615 (concluding that, despite guidelines
issued by the agency, the U.S. government continues to seek removal of noncitizens in cases that
are low priority).
18
immunize herself from possible removal from the United States (as well as to be eligible to vote
or serve on a jury). Consequently, noncitizens whose cases are remanded, but in which removal
proceedings are not reactivated, may live in fear of removal, just as many undocumented
immigrants live today in the country. 67
II.
IMMIGRATION REMANDS
Unlike INS v. Cardoza-Fonseca and Landon v. Plasencia, two famous immigration
decisions of the Supreme Court, criminal convictions that are reversed by the high court
generally tend not to get lost in the shuffle on remand.
In Hernandez v. Texas, 68 for example, the Supreme Court reversed the murder
conviction of Pete Hernandez because the Texas county in which his trial was held had excluded
otherwise eligible U.S. citizens of Mexican ancestry from jury service. On remand, Hernandez
was retried, found guilty, and sentenced to 20 years in prison. 69 Similarly, the Supreme Court in
its famous “Miranda warning” decision reversed a conviction for kidnapping and rape because a
confession was obtained in violation of the Fifth Amendment. 70 On remand, Ernesto Miranda
was tried and convicted of the charges. 71 There does not to appear to have been any real
67
See infra text accompanying notes ______ (outlining Obama administration’s new
guidelines on prosecutorial discretion, which when applied by U.S. government attorneys can
leave undocumented immigrants in similar uncertain circumstances).
68
347 U.S. 475 (1954).
69
See Michael A. Olivas, Hernandez v. Texas: A Litigation History, in “COLORED MEN”
AND HOMBRES AQUÍ”: HERNANDEZ V. TEXAS AND THE EMERGENCE OF MEXICAN-AMERICAN
LAWYERING 209, 219 (2006).
70
See Miranda v. Arizona, 384 U.S. 436 (1966).
71
See State v. Miranda, 104 Ariz. 174, 450 P.2d 364, cert. denied, 396 U.S. 868 (1969).
19
question that, upon reversal and remand by the Supreme Court, the local prosecutors in both
Hernandez and Miranda would retry the cases.
Structural reasons suggest why state criminal convictions on remand often will be retried.
Garden-variety state criminal cases that are reversed generally are remanded to local prosecutors.
Local prosecutor offices are likely to feel direct political pressure to prosecute a case upon
remand. This is especially true if the crime is serious; not surprisingly, convictions for serious
crimes with lengthy sentences are the most likely to be appealed. In a state criminal case, the
prosecuting office is headed by a district attorney, who generally is elected, a political figure in
the community, and must be responsive to a local political constituency. Through elections, the
district attorney is held directly accountable to the voters, with few decisions more politically
damaging (and publically visible) than setting a dangerous criminal free. 72 The tangible political
accountability of local prosecutors generally militates in favor of re-prosecution of a serious
criminal case.
As explained succinctly by Professor Ronald Wright,
[t]he American people elect their prosecutors directly. . . . [D]emocratic control of
prosecutors takes its most powerful form: local control. Many prosecutors are elected on
a county-wide basis while many others serve districts that only serve a few counties. The
local prosecutor remains close to the community, where democratic accountability is
thought to be strongest. . . . Local prosecutor elections create a radically decentralized
criminal justice system. . . . [T]he ultimate political authority . . . rests with the chief
72
See, e.g., Leland Ware & David C. Wilson, Jim Crow on the “Down Low”: Subtle
Racial Appeals in Presidential Campaigns, 24 ST. JOHN’S J. LEGAL COMMENT. 299, 312-13
(2009) (recalling how in the 1988 Presidential campaign George Bush’s famous television
advertisement blaming Massachusetts Governor Michael Dukakis of being responsible for the
release from prison of African American Willie Horton, who later committed violent crimes).
20
prosecutor who answers only to the local voters. The local District Attorney does not
report up to any statewide hierarchy (such as the state Department of Justice when
setting priorities and practices of the office). 73
As suggested by INS v. Cardoza-Fonseca and Landon v. Plasencia, the same political
dynamic does not exist in immigration cases, which are in the hands of the national government
headed by the President. 74 The lack of direct political accountability can make a difference.
Upon remand of a removal case by an appellate court, the attorneys of the U.S. government
ordinarily enjoy greater freedom than a local prosecutor to decide whether it makes sense to
proceed with further proceedings or to simply abandon the case. In essence, there is not the
comparable localized political pressure on the U.S. government in the handling of removal cases
like that which exists for a local district attorney prosecuting criminal offenses. Moreover,
although immigration enforcement generally can be a hot button political issue, 75 public
attention generally does not dwell unduly on the individual removal case. 76
73
Ronald F. Wright, How Prosecutor Elections Fail Us, 6 OHIO ST. J. CRIM. L. 581, 589
(2009) (emphasis added) (footnotes omitted). The same is not true for federal prosecutors in
offices in cities throughout the United States. U.S. attorneys, who head these offices, are
appointed by the President, not elected by the voters. See Brandon L. Bigelow, Note, The
Commerce Clause and Criminal Law, 41 B.C. L. REV. 913, 936 (2000) (“The President of the
United States appoints a United States Attorney to each judicial district with the advice and
consent of the Senate; subject to removal by the President, U.S. Attorneys serve a term of four
years.”) (footnote citing 28 U.S.C. § 541(a)-(c)). U.S. attorneys are directly accountable to the
President, not the voters. See Sara Sun Beale, Rethinking the Identity and Role of United States
Attorneys, 6 OHIO ST. J. CRIM. L. 369 (2009); Bruce A. Gree & Fred C. Zacharias, “The U.S.
Attorneys Scandal” and the Allocation of Prosecutorial Power, 69 OHIO ST. L.J. 187, 188-91
(2008).
74
See supra text accompanying notes ______.
75
See supra text accompanying notes ______.
76
There may be exceptions to this general proposition, such as in the removal of war
criminals from the United States. See, e.g., Nicholas Kulish, Man, 89, Accused of Crimes at a
Nazi Camp is Deported, N.Y. TIMES, May 12, 2009, at 10 (reporting on the removal of accused
21
Nothing in the structure of the U.S. government leads to anything similar to the direct
local political accountability to which a local district attorney’s office is subject. Except in the
most exceptional immigration cases, there ordinarily is nothing equivalent to a crime victim, or
his or her family, to pressure the U.S. government to pursue removal proceedings against a
noncitizen. Without such direct pressure, the U.S. government has greater independence than a
local district attorney to exercise discretion in deciding whether to pursue a removal case upon
remand by a reviewing court.
Nor is there any real serious question about the legitimacy of U.S. government attorneys
exercising prosecutorial discretion in removal cases. 77 Indeed, the Obama administration in
2011 took a series of steps to encourage, and provide guidance in, the exercise of discretion by
government attorneys in deciding whether to seek the removal of long term residents who do not
have criminal records. 78 The administration subsequently went further and announced that it
Nazi war criminal after years of litigation and considerable national and international press
coverage).
77
See generally Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in
Immigration Law, 9 CONN. PUB. INT. L.J. 243 (2010) (analyzing exercise of prosecutorial
discretion in immigration cases).
78
A memorandum issued by the Director of U.S. Immigration and Customs Enforcement
(ICE), John Morton, in 2011 offered guidance on the proper use of prosecutorial discretion in
pursuing removal of noncitizens by immigration trial attorneys. See
www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf (March 2, 2011). In June,
Morton provided further guidance to ICE personnel “on the exercise of prosecutorial discretion
to ensure that the agency’s immigration enforcement resources are focused on the agency’s
enforcement priorities.” See http://www.ice.gov/doclib/secure-communities/pdf/prosecutorialdiscretion-memo.pdf (June 17, 2011).
For analysis of the exercise of prosecutorial discretion in removal cases under these
directives, see MARY KENNEY, PRACTICE ADVISORY, PROSECUTORIAL DISCRETION: HOW TO
ADVOCATE FOR YOUR CLIENT (American Immigration Council, Legal Action Center, Updated
June 24, 2011), available at http://www.legalactioncenter.org/practice-advisories/prosecutorialdiscretion-how-advocate-your-client.
22
would review all pending removal cases — approximately 300,000 in number — to ensure that
they comply with the U.S. government’s highest removal priorities and to ensure that the
immigration bureaucracy not pursue removal proceedings in low priority cases. 79 Logically,
discretion may be appropriately exercised by the U.S. government attorney on the remand of a
removal case as well as in the first instance. 80
Moreover, many considerations may come into play in the U.S. government’s decision to
proceed (or not) with a removal case, considerations that are not present in the ordinary criminal
case. As INS v. Cardoza-Fonseca (legalization) and Landon v. Plasencia (Section 212(c) relief)
both illustrate, 81 a noncitizen under the U.S. immigration laws may have possibilities for relief
for removal other than that considered by the reviewing court. A noncitizen, for example, may
be in a position to file a motion to reopen the proceedings due to the discovery of new evidence
79
See Paloma Esquivel, Hoping They’re “Low Priority”, Immigrants Get Hopes Up as U.S.
Plans to Review 300,000 Deportation Cases, L.A. TIMES, Aug. 29, 2011, at A1. This policy
change was criticized as a de facto “amnesty” by those who favor greater enforcement of the
U.S. immigration laws. See U.S. Will Ease Way to Citizenship for Some, WASH. POST, Aug. 19,
2011, at A5 (summarizing review process announced by the Obama administration and various
objections to the program).
80
Such discretion also might be exercised by the U.S. government in the appeal of removal
cases. In several appeals, a panel of the U.S. Court of Appeals for the Ninth Circuit in early
2012 asked the U.S. government to state whether it would continue to press removal of
noncitizens who appeared to be low priority under the prosecutorial discretion guidelines issued
by the U.S. government. See Matt O’Brien, Ninth Circuit Asks Obama Administration to Clarify
Its Deportation Priorities, SAN JOSE MERC. NEWS, Feb. 8, 2012; Ninth Circuit: Obama
Administration Must Put Up or Shut Up on Prosecutorial Discretion, ImmigrationProf, Feb. 7,
2012, available at http://lawprofessors.typepad.com/immigration/2012/02/ninth-circuit-obamaadministration-must-put-up-or-shut-up-on-prosecutorial-discretion.html.
81
See supra text accompanying notes
.
23
or to seek a form of relief not presented on appeal. 82 The U.S. government in those
circumstances may decide not to pursue removal.
Moreover, the mere passage of time due to an appeal may make a noncitizen eligible for
a form of relief available under the immigration laws, such as cancellation of removal, which
might defeat any claim to removal (and for which, before the appeal he or she was not
eligible). 83 There, generally speaking, is nothing remotely comparable in the run-of-the-mill
state criminal case. Last but not least, as may have been a factor to the attorneys for the United
States in INS v. Cardoza-Fonseca and Landon v. Plascencia, 84 the government attorney may not
want to proceed for fear of creating bad precedent governing future cases.
CONCLUSION
Despite the intense scholarly analysis of the emergence of so-called crimmigration law, 85
we have identified an important dissymmetry between criminal and immigration removal cases.
The U.S. government attorney does not face the same political pressures to pursue a removal
case on remand from a higher court as a local prosecutor ordinarily does in a criminal case. 86
82
See 8 C.F.R. § 1003.2 (2011). Motions to reopen are routinely brought by noncitizens
ordered to be removed from the United States. See, e.g., Kucana v. Holder, 130 S. Ct. 827
(2010); Nken v. Holder, 556 U.S. 418 (2009); Dada v. Mukasey, 554 U.S. 1 (2008).
83
See Immigration & Nationality Act § 240A(b), 8 U.S.C. § 1229b(b) (providing for relief
for removal for lawful permanent resident who “has resided in the United States continuously for
seven years”). See generally KEVIN R. JOHNSON ET AL., UNDERSTANDING IMMIGRATION LAW
320-31 (2009) (summarizing various forms of relief from removal available to noncitizens under
the U.S. immigration laws).
84
See supra text accompanying notes ____.
85
See supra text accompanying notes ____.
86
See supra Part II.
24
Although there are exceptions, 87 prosecutorial discretion — and the careful consideration
whether the government wants to move a proceeding forward — in favor of a noncitizen will
more likely be exercised upon remand in a removal case pursued by the national government
rather than for a defendant in a state criminal case to be prosecuted locally.
Consequently, the U.S. government may simply decide to allow a removal case to
languish despite a court’s instructions for further proceedings on remand. 88 In that circumstance,
the court’s decision may as a practical matter represent the end of the legal proceedings against a
noncitizen. That appears to have been the situation in the wake of two leading immigration
decisions of the Supreme Court, INS v. Cardoza-Fonseca and Landon v. Plasencia. 89
In immigration cases, especially removal cases, remands may be a victory of sorts for the
noncitizen (similar in certain respects to a hung jury in a criminal case). The delay of removal
for months, if not years, as an appeal meanders its way through the courts may make the
noncitizen eligible for various kinds of relief. 90 However one looks at it, the remand of a
removal case by a reviewing court is very different in kind than the remand of a criminal case in
the hands of local prosecutors.
Remand is one example suggesting that scholars should be careful in analyzing the
differences, as well as similarities, between immigration and criminal law. 91 This is true even as
the criminal law is being used aggressively by the U.S. government to assist in immigration
87
See supra note ____.
88
See supra text accompanying notes ____.
89
See supra Part I.
90
See supra text accompanying note ____.
91
See Chin, supra note ____.
25
enforcement in new and different ways.
26