Argument analysis: The easy way or the hard way to decide an untimely immigration appeal?
After Tuesday’s marathon session in the marriage cases and Wednesday’s first (and tense) argument in Glossip, one can understand if the Justices’ attention was focused elsewhere when WilmerHale partner Mark Fleming stepped to the podium representing the petitioner in Mata v. Lynch. After all, as we noted in our argument preview, the government had already conceded that the Fifth Circuit was on the wrong end of a ten-to-one circuit split on the hypertechnical question presented: “Whether [it] erred in this case in holding that it has no jurisdiction to review petitioner’s request that the Board of Immigration Appeals equitably toll the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel.” Moreover, the only lawyer defending the decision below was Beck Redden LLP associate William Peterson — whom the Court appointed as an amicus to do exactly that. So it was that, when Fleming concluded his opening remarks by suggesting to the Justices that there is a “short way” to decide this case, Justice Anthony Kennedy replied that Fleming “know[s] the way to our hearts.”
Fleming’s promised brevity, however, soon appeared elusive — as the Justices did their best to ascertain why the Fifth Circuit believed that it lacked jurisdiction to hear Mata’s appeal, with an apparent eye toward how to shape the (seemingly) inevitable vacatur and remand. Justice Ruth Bader Ginsburg led the charge, suggesting that, if the Court held that the Fifth Circuit did have jurisdiction, the court of appeals would simply hold on remand that the ninety-day deadline for Mata’s motion to reopen wasn’t subject to equitable tolling, implicitly suggesting that the Justices pretermit that possibility by reaching the equitable tolling question themselves. Fleming responded that, in his view, whether the ninety-day deadline is subject to equitable tolling is an open question in the Fifth Circuit, but one on which its jurisdiction does not depend. Justice Antonin Scalia rose to the Fifth Circuit’s defense, wondering if the court of appeals might have thought it lacked jurisdiction because it believed, however implicitly, that no equitable tolling should have been available — and so the BIA could only have considered Mata’s motion to reopen sua sponte. But Fleming responded effectively, suggesting that, even if the Board had acted sua sponte, the Fifth Circuit should still have had jurisdiction to review the Board’s decision, even if such review was quite deferential.
Arguing on behalf of the government in support of Mata, Assistant to the Solicitor General Anthony Yang echoed Fleming’s critique of the ruling below, but also highlighted the one important point on which the government and Mata disagree: Although Mata’s position, as Fleming made clear, is that the court of appeals’ jurisdiction does not depend upon whether the ninety-day deadline is subject to equitable tolling, the government disagrees. Thus, as Yang stressed, while the government agrees with Mata that the deadline should be subject to tolling (and, thus, that the decision below should be vacated), it would endorse the Fifth Circuit’s jurisdictional holding if, contrary to the government’s position, no equitable tolling is available.
But, like the end of Fleming’s opening presentation, Yang’s ten-minute colloquy with the Justices was dominated by questions going to the terms of a remand to the Fifth Circuit — especially in light of pending (but not-yet-public) DOJ rulemaking on the precise question at issue, i.e., whether the ninety-day deadline is subject to equitable tolling.
Thus, by the time Peterson joined the conversation as an amicus in support of the decision below, the matter seemed fairly well settled. Peterson did well to paint the Fifth Circuit’s approach in the best possible light, with the court of appeals construing the Board’s decision in the only way that would have made sense if equitable tolling was, in fact, unavailable (contrary to the Board’s own ruling that the deadline could be equitably tolled, but should not be in Mata’s case). Thus, Peterson argued, the Justices should reach the question of whether the deadline is subject to equitable tolling before deciding whether the court of appeals correctly held that it lacked jurisdiction. But that reasoning met with stiff resistance on administrative law grounds from Justices Antonin Scalia, Stephen Breyer, and Elena Kagan, each of whom pointed out the tension between that approach and foundational principles governing judicial review of administrative adjudication dating back to Chenery. And as Justice Breyer put it at one point, “why go into those two tough questions, when in fact we asked for the answer to a simple question. . . .[Y]ou have written a very good brief and I understand what you’re doing . . . but I still am sort of stuck on this.” With the possible exceptions of Justices Samuel Alito, Anthony Kennedy, and Clarence Thomas (none of whom asked any questions during the argument), it certainly appeared that Justice Breyer was not alone.
In the end, the one point on which all three advocates agreed was that the Justices have a choice: decide the case narrowly by vacating the jurisdictional decision below and leaving everything else for the Fifth Circuit on remand, or get into the complicated question of whether the ninety-day deadline is subject to equitable tolling, and only then revisit the jurisdictional question on which certiorari was granted. And although Peterson did yeoman’s work in attempting to convince the Justices to make an easy case harder, the sentiment that seemed far more likely to carry the day was expressed by Assistant to the Solicitor General Yang: “It’s an appropriate case to end the term on; it’s quick, it’s easy.” Given that the final argument of the Term ended eight minutes ahead of schedule, it looks like the Court may well agree.