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Petitions of the week: DNA analysts, Temporary Protected Status recipients and more

This week we highlight cert petitions that ask the Supreme Court to decide, among other issues, which forensic analysts in a multi-analyst DNA-testing process a criminal defendant has the right to confront at trial and whether noncitizens who entered the United States without authorization but who later received Temporary Protected Status are eligible for lawful-permanent-resident status.

The Supreme Court in 2009’s Melendez-Diaz v. Massachusetts held that the Constitution’s confrontation clause prohibits prosecutors from introducing forensic reports into evidence without giving criminal defendants the chance to cross-examine the analysts who produced the reports. However, courts have struggled to articulate which analysts prosecutors must call to testify when multiple analysts participate in forensic testing. In Chavis v. Delaware, a jury convicted Dakai Chavis of burglary of an apartment on the basis of a DNA sample that police took from outside the bedroom window. At trial, an analyst who completed the final, but not initial, steps in analyzing the DNA sample from the apartment testified that the sample matched a reference sample of Chavis’ DNA. DNA testing typically involves six steps, and the testifying analyst did not observe or supervise the analysts who performed the earlier tasks. Determining that the absence of the other analysts did not violate the confrontation clause, the Delaware Supreme Court affirmed Chavis’ conviction. Chavis asks the justices to review the Delaware court’s decision.

Sanchez v. Wolf involves an immigration category known as Temporary Protected Status, which allows people from countries suffering humanitarian crises to live and work in the United States for a limited time. The case asks whether a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status if those noncitizens originally entered the United States without being “inspected and admitted” – a term of art referring to lawful entry and authorization by an immigration officer. Jose Santos Sanchez and Sonia Gonzalez are a married couple from El Salvador who entered the United States without being inspected and admitted. In 2001, after earthquakes in El Salvador, the couple received Temporary Protected Status. Under the Immigration and Nationality Act, a TPS recipient shall be “considered as being in, and maintaining, lawful status as a nonimmigrant” for purposes of applying to become a lawful permanent resident. When the couple in 2015 applied to adjust their status to that of lawful permanent residents, the government denied the application because they had never been lawfully admitted into the United States as required by the INA. Distinguishing between “admission” and “status,” the U.S. Court of Appeals for the 3rd Circuit agreed that a grant of Temporary Protected Status does not satisfy the “admission” requirement. Arguing that this decision conflicts with rulings by the U.S. Court of Appeals for the 6th and 9th Circuits and that the issue affects hundreds of thousands, the couple asks for the justices to review the 3rd Circuit’s opinion.

These and other petitions of the week are below:

Box v. Henderson
Issue: Whether a state, consistent with the 14th Amendment due process and equal protection clauses, may adopt a biology-based birth-certificate system that includes a rebuttable presumption that a birth mother’s husband — but not wife — is the child’s biological parent.

Ommen v. Milliman Inc.
Issues: (1) Whether the Federal Arbitration Act preempts the generally applicable disavowal defense codified in Iowa’s Liquidation Act; and (2) whether, if so, whether the McCarran-Ferguson Act exempts the disavowal defense from preemption.

Keach v. New Brunswick Southern Railway Co.
Issue: Whether the “six months rule” — which grants a special priority to certain unsecured claims of creditors that provided goods or services necessary to a railroad’s operation, in reliance on payment out of the railroad’s current income, in the six months before the receivership — entitles unsecured claims for necessary operating expenses incurred by a railroad in the six months before bankruptcy to priority of payment if the railroad has not diverted any income away from the payment of such claims to pay secured creditors.

Sanchez v. Wolf
Issue: Whether, under 8 U.S.C. § 1254a(f)(4), a grant of temporary protected status authorizes eligible noncitizens to obtain lawful-permanent-resident status under 8 U.S.C. § 1255.

Chavis v. Delaware
Issue: Whether the confrontation clause permits DNA evidence obtained as the result of a multi-analyst testing process to be introduced against the defendant at trial through one of the testing analysts who has no personal knowledge of the basis for the out-of-court testimonial statements made by the other nontestifying analysts who participated in the testing.

Barr v. Aleman Gonzalez
Issue: Whether an alien who is detained under 8 U.S.C. § 1231 is entitled by statute, after six months of detention, to a bond hearing at which the government must prove to an immigration judge that the alien is a flight risk or a danger to the community.

Recommended Citation: Andrew Hamm, Petitions of the week: DNA analysts, Temporary Protected Status recipients and more, SCOTUSblog (Oct. 9, 2020, 3:49 PM),