A Government Lawyer's Tough Day at the Supreme Court
"I don't think you should trivialize this case, Mr. Yang," admonished Justice Elena Kagan.
November 13, 2024 at 07:45 AM
5 minute read
Welcome to Supreme Court Brief. My name is Jimmy Hoover. I've been covering the Supreme Court for the National Law Journal and ALM since April 2023. In this newsletter, I provide daily news and analysis of the Supreme Court's sittings. Tuesday marked the penultimate day of the court's November argument session, where the court heard from attorneys in two cases.
In its morning orders list, the justices turned away a Supreme Court petition from President-elect Donald Trump's former chief of staff Mark Meadows, who was seeking to transfer Georgia's criminal case against him related to the 2020 election over to federal court. The court did not explain its denial of certiorari, as is typical, and none of the justices registered dissents.
As Justice Samuel Alito Jr. noted Tuesday afternoon, it was a "fascinating" day for legal arguments at the court, particularly in the second case of the day, Delligatti v. U.S., which centers around what constitutes a "crime of violence" subject to a 5-year sentence enhancement. From evil lifeguards to old lady haters, the justices floated all manner of dastardly hypotheticals as they tried to determine whether some murders can truly be considered non-violent. I described many of those scenarios in my news coverage for the NLJ.
Today's edition of Supreme Court Brief focuses on the first hearing of the day, in which a Mexican national claims the government has disregarded an "ancient" rule regarding filing deadlines.
Thanks for reading. If you'd like to get in touch with tips, feedback or general greetings, you can reach me at [email protected]. Follow me on X: @JimmyHooverDC.
DOJ Lawyer Faces Tough Questioning In Immigration Case
Using humor can be a precarious high-wire act for a Supreme Court lawyer, particularly if you're representing the might of the federal government in a case with a real human being's life at stake.
Yet in capital cases, constitutional cases and routine business disputes, justices and advocates frequently try to inject some levity into what can otherwise be long and tedious legal hearings. On Tuesday afternoon, for instance, Justice Neil Gorsuch posited a question about a person who hates "little old ladies," an admittedly "extreme" hypothetical that he said would have made the famously quirky questioner Justice Stephen Breyer "proud."
Justices, of course, can yuk it up as they please. That's not true of the lawyers appearing before them.
Assistant to the U.S. Solicitor General Anthony Yang found out the limit of his familiarity during Tuesday morning's hearing in the case Velazquez v. Garland, which centers around whether a Mexican national could wait until the next business day to file a key motion that was due on a Saturday. The petitioner, Hugo Monsalvo Velazquez, is facing removal to Mexico after originally coming to the United States as a teenager, playing varsity high school soccer, attending community college, getting married, having children and starting an auto-detailing business.
Velazquez has argued that the Supreme Court should recognize the "ancient" rule that, when a filing deadline falls on a weekend or holiday, litigants have until the next business day to file the required documents. In this case, that would allow the Board of Immigration Appeals to consider Velazquez's motion to reopen his immigration proceedings and argue that his removal back to Mexico would cause significant hardship on his family.
The federal government has argued that such a rule is nowhere to be found in the relevant provision of the Illegal Immigration Reform and Immigration Responsibility Act.
But in addition to the debate over that filing rule, the government has taken the position that the U.S. Court of Appeals for the Tenth Circuit lacked jurisdiction to even consider Velazquez' petition to review the BIA decision rejecting the motion.
Justice Elena Kagan began questioning Yang about the government's position. Why should the BIA fault Velazquez for not inventing a meritless challenge to his removability, instead of just deciding the timeliness issue? "He did what I would think the agency would want him to do," she said.
Yang again answered that Velazquez can only seek judicial review of his "final order of removal," to which Kagan replied, "That's completely non-responsive to the question that I just asked."
Facing similar scrutiny from Justice Ketanji Brown Jackson, Yang then tried an analogy to drive the point home.
"Take an alien who's a soccer fan and says: I want to move for reconsideration. I want you to include in your opinion the statement I'm as good of a soccer player as Lionel Messi. Now it—"
"—I don't think you should trivialize this case, Mr. Yang," interjected Justice Kagan.
"No, no, no, no, because it doesn't affect the final order of removal," responded Yang.
The court may not reach the jurisdictional question at all, which is, as Justice Brett Kavanaugh noted, "not the question we granted cert on."
"In that circumstance, is the prudent thing to do to vacate and send it back so that the Tenth Circuit can consider the jurisdictional issue in the first instance?" Kavanaugh asked.
"There's no harm in sending it back," said Yang.
That may be the best outcome for the government, given the pushback that Yang faced from other members of the court on the merits of the question presented.
Justice Neil Gorsuch, for instance, seemed unpersuaded by the government's stance that non-citizens must meet key filing deadlines falling on Saturdays, Sundays and public holidays. He pointed out that the Code of Federal Regulations incorporates that filing rule into the definition of the word "day."
"Normally, the government really likes its regulations," said Gorsuch. "It used to come up here and say we have to defer to them," he added in a reference to the now-defunct doctrine of Chevron deference jettisoned in last term's decision in Loper Bright Enterprises v. Raimondo.
"You're running from your regulations," Gorsuch said. "I mean, it's sort of like garlic in front of a vampire. You don't want to have anything to do with them."
A decision in Velazquez v. Garland, No. 23-929, is expected by July.
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