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Posted April 14, 2011

Deputy Solicitor General Edwin Kneedler '74 Discusses Immigration Cases

Kneedler

With more than 100 arguments before the U.S. Supreme Court under his belt, Deputy Solicitor General Edwin Kneedler '74 has unique experience analyzing contentious legal issues.

Kneedler discussed his experience arguing immigration cases before the Supreme Court on behalf of the federal government March 31 at an event sponsored by the Law School’s Immigration Law Program.

“Handling of Immigration cases can now be more complex than it used to be because immigration responsibility is vested in two executive departments, not one,” Kneedler said. “The Department of Homeland Security has the basic enforcement responsibilities, and the Justice Department has the adjudicatory responsibilities.”

Kneedler highlighted two complex Supreme Court immigration cases from 2001 in his lecture.

In Zadvydas v. Davis, the Supreme Court considered a constitutional challenge to the provision of the Immigration and Nationality Act (INA) governing the continued detention, pending removal, of aliens who have been ordered deported.  In part to avoid questions concerning the constitutionality of the statutory provision, the court construed it to contain an implicit “reasonableness” limitation, and adopted a presumptive rule that six months would be a reasonable time for the government to arrange for the alien’s removal to another country.  

Kneedler noted that while the case was pending, the government established procedures for administrative review of such detentions, and he explained how representing the government in immigration and other cases can sometimes involves advising the agency concerned on non-litigation ways to address legal issues.

INS v. St. Cyr involved two laws passed in 1996, specifically the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, that eliminated a form of discretionary relief from removal for certain aliens under Section 212(c) of the INA.  Those 1996 laws also provided for review of all immigration cases in the courts of appeals rather than by habeas corpus, and further restricted judicial review for certain criminal aliens.

In the case, Enrico St. Cyr, a lawful permanent U.S. resident for 10 years and a Haitian citizen, pleaded guilty prior to 1996 to a controlled substance violation. The government argued that St. Cyr could not have his case reviewed on habeas corpus, and that the 1996 amendments had rendered him ineligible for discretionary relief. St. Cyr argued he was entitled to challenge his removal order through habeas corpus notwithstanding the 1996 amendments because the elimination of judicial review for criminal aliens would violate the Suspension Clause of the Constitution, and that the repeal of Section 212(c) should not be applied retroactively to him.

The Supreme Court ruled that the 1996 laws were not explicit enough to accomplish a repeal of habeas corpus, and that the elimination of relief under Section 212(c) should not be applied retroactively to St. Cyr.  Kneedler pointed out that St. Cyr came up at a time when the Supreme Court had recently considered a number of cases dealing with retroactivity, and the court applied its general retroactivity jurisprudence to the immigration context. 

“So there are a lot of situations in which immigration is unique, but there are also cross-cutting issues in which the court applies principles drawn from elsewhere” in the  law, he said. Thus, the court rigorously applied its retroactivity analysis in St. Cyr, even though the general thrust of the 1996 amendments was to be tough on criminal aliens and to expedite their removal, Kneedler said.

Kneedler also explained that there is increasing interaction between immigration law and criminal law, both substantive and procedural. That development reflects another way in which immigration law is becoming less unique unto itself and poses challenges for immigration advocates to become familiar with another area of the law.    

Kneedler’s expertise was recently brought to bear on the legality of Arizona’s controversial Senate Bill 1070. Among other things, that law requires a state or local police officer to question a person he stops about the person’s immigration status, if the officer has reasonable suspicion that he is illegally present.

Kneedler argued the case for the United States Government before the U.S. Court of Appeals for the Ninth Circuit, contending that this and other provisions of the Arizona law are preempted by the INA and by the federal government’s exclusive authority over immigration.

"The United States, the nation as a whole, is responsible to other nations for the ways in which their citizens are treated in the United States," Kneedler said. "If every state did this, we would have a patchwork of laws." 

The Ninth Circuit recently ruled for the United States on that appeal.

Kneedler was Acting Solicitor General under President Barack Obama from January 2009 until now-Supreme Court Justice Elena Kagan was appointed Solicitor General in March 2009.

In 2008, Kneedler argued his 100th case before the Supreme Court — one of only 10 lawyers to do so. Chief Justice John Roberts congratulated Kneedler on his milestone from the bench.

Reported by Tim Arnold