UPDATE 3:21 p.m. Here is the Court’s revised January argument calendar, with the newly added deportation case set for Jan. 21.
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The Supreme Court agreed on Tuesday to add two new cases to its decision docket, but took no immediate action on the most visible case it had considered in private earlier in the day: the test of the President’s power to order the indefinite detention of a terrorism suspect captured inside the U.S. and held here. That is the issue in Al-Marri v. Pucciarelli (08-368). The Court also did not act immediately on two new appeals testing when the Clean Water Act’s ban on water pollution applies to wetlands — the issue that the Court last considered in a splintered decision in 2006 in Rapanos v. U.S. The new cases on that question are U.S. v. McWane (08-233) and a cross-petition, McWane v. U.S. (08-364).
In one of the newly granted cases, the Court converted a plea to temporarily delay deportation of a native of Cameroon into a regular appeal and accepted it for full review. The case is Nken v. Mukasey (08-681). The Court apparently decided to hear the case to clear up a conflict on the standard for barring deporation pending judicial review of an alien’s plea for asylum or other relief from being deported. The specific question is whether a federal law barring courts from issuing binding orders to block deportation of an alien only applies to injunctions, or also applies to requests for postponement of removal pending court review.
The case involves Jean Marc Nken, a native of Cameroon who fears persecution from the dictatorial regime that now governs his home country. His wife is a U.S. citizen, as is their son. His family has been active in political protests in his homeland. He had been denied a stay of a deportation order while he pursued court review of immigration officials’ denial of his asylum claim and his plea to remain in this country.
Originally, Nken’s lawyers had asked Chief Justice John G. Roberts, Jr., for a stay of deportation pending Fourth Circuit Court review of his asylum claim (application 08A413), but asked, as an alternative, that the Court treat his case as a petition for review, and grant it. That alternative is what the Court opted to do.
The Justices ordered expedited briefing in the case, and set it for oral argument at 1 p.m. on Wed., Jan. 21. In the meantime, the Court blocked his deportation “pending further order.”
The second new case the Justices granted is a government appeal, U.S. v. Denedo (08-267), testing whether a former service member whose conviction in a military court had become final may nevertheless challenge the verdict within the military appeals court system. The Justice Department contends in its appeal that the military’s highest court, the Court of Appeals for the Armed Forces, has issued a series of rulings — including the one at issue here — that oversteps the bounds of its authority set by Congress.
The military case involves Jacob Denedo, a Nigerian national who had come to the U.S. in 1984 as a student and eventually achieved permanent resident alien status. He enlisted in the Navy in 1989. While still in uniform in 1998, he was convicted of larceny and conspiracy to commit larceny, based on a charge that he had assisted a civilian friend in defrauding a community college.
He pleaded guilty, and he was sentenced to three months in military jail, had his rank stripped, and was given a bad-conduct discharge. At no time during those proceedings did potential deportation to Nigeria arise. It turned out, however, that Denedo had asked his lawyer if he was at risk of deportation, and his lawyer said no — advice that was in error.
His conviction was upheld within the military court system, he was discharged in 2000, and in 2002 he applied for U.S. citizenship. Immigration officials denied the application because of his military conviction. In October 2006, after the time had expired to challenge his conviction in civilian courts, deportation proceedings against him were begun. He got a new civilian lawyer, and petitioned a Navy appeals court for a new review of his case, under a “writ of error coram nobis.” That court denied relief. Denedo then sought the same writ from the Court of Appeals for the Armed Forces, which held it had jurisdiction and sent the case back to the Navy appeal tribunal for further review. It based its jurisdiction on the All Writs Act.
The Court’s failure to announce any orders on other cases it had considered at its Tuesday Conference did not necessarily mean that the significant cases among them will be denied. The first indication of whether it took some other action will be when orders are released next Monday morning.
The alternatives for the al-Marri case on presidential domestic detention power include possible denial of review, rescheduling of the case for later consideration again, simply putting the case on hold for the time being, or, at a later Conference, perhaps granting it. Even if the Court has decided not to grant that case, that may not be known on Monday, if one or more Justices was preparing a dissent from the denial.
