Supreme Court Appoints Advocate to Argue Immigration Case

As we reported here last year, one of the little-known paths a lawyer can take to achieving the goal of arguing before the Supreme Court comes when a party decides it no longer wants to argue in favor of or against a lower court decision that is on appeal. When that happens, half the case falls away, so to speak. The Supreme Court, if it still wants an airing of the issue at stake, then appoints a lawyer -- almost always a former law clerk to a justice -- to advance the now-orphaned argument.

It happens rarely, once every year or so, and it happened again yesterday. The Court issued an order Thursday appointing Amanda Leiter, a professor at Catholic University's Columbus School of Law and former clerk to Justice John Paul Stevens, to argue in favor of the decision below in an immigration case, Kucana v. Holder. Ordinarily, since the U.S. government is the respondent, the solicitor general's office would be making that argument. But Solicitor General Elena Kagan in her brief in the case, agreed with petitioner Agron Kucana, an Albanian facing deportation, that the U.S. Court of Appeals for the 7th Circuit was wrong. With no one supporting the 7th Circuit, the Court appointed Leiter.

At issue is whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 stripped federal courts of jurisdiction to review the Board of Immigration Appeals' denial of an immigrant's motion to reopen proceedings. "It's an important case," said Sidley Austin partner Jeffrey Green, author of a brief in the case on behalf of immigration advocacy groups. "You ought to be able to reopen a case when something new falls in your lap."

In the case before the Court, Kucana sought to reopen his removal proceedings based on changes in the political conditions in Albania that he claimed would make him eligible for asylum. But the immigration judge and Board of Imigration Appeals rejected the motion, and the 7th Circuit dismissed Kucana's petition, finding that the court had no jurisdiction to review such appeals.

But the SG's brief argues that in fact, the law limiting judicial review of certain immigration matters does not extend to appeals of the board's denial of motions to reopen. Is this a new position taken by the Obama Justice Department, switching from the Bush era? Not really, said Green. "The government never took the harsh jurisdictional view on this issue."

Leiter, who was a litigator at the Natural Resources Defense Council before entering academia, teaches administrative law. In addition to her law degree from Harvard, she holds degrees in oceanography and civil engineering. She could not be reached for comment.

Comments

[Brian]

It is an overstatement to say that these counsel appointments happen "when a party decides it no longer wants to argue in favor of or against a lower court decision that is on appeal." Generally, if a party flips its position, it can just give up and settle the case, and that situation comprises the great majority of cases involving positional flips. So, the government can confess error, and work out the relief. The problem arises when the lower court says it lacks jurisdiction (authority) to do what the losing party wants done. Then, if the winner flips its position, there may be nothing that can be done to get the loser relief. That's what happened in this case.