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Stephen Yale-Loehr Quoted on Supreme Court Decisions

Stephen Yale-Loehr was quoted on June 20, 2015, in VOA News in "Supreme Court Hands Down 2 Decisions on Immigration." In a case where a former Taliban-controlled payroll worker from Afghanistan married a U.S. citizen but was denied a visa to move to the United States, Mr. Yale-Loehr noted that this case has a broader impact: "If a U.S. citizen marries a Chinese citizen in China and tries to petition through the green-card process to have the foreign spouse come over to the United States, and if the U.S. [consulate] in Guangzhou were to deny the visa because the foreign spouse is a former member of the Communist Party, or they allege maybe the Chinese citizen committed some crimes in the past even though it is unproven, that would not be reviewable in the U.S. court." He noted that this means the couple would be either separated or the U.S. citizen spouse would have to move to China to live with his or her spouse.

In another case, where an undocumented person was put in removal proceedings after he was convicted of assault, and his attorney missed a key filing deadline, Mr. Yale-Loehr noted, "The Supreme Court said, 'Look, we are not going to decide whether the Mexican citizen case should be overturned, but at least the federal court has jurisdiction to hear the case.' " He said that immigrants "can at least get in the door to the courthouse in some cases, but it doesn't necessarily mean that they will win once they get in the courthouse door."

Mr. Yale-Loehr was was quoted in several related articles with respect to recent Supreme Court decisions:

  • U.S. News and World Report on June 15, 2015, in "Supreme Court Hands Defeat to Binational Marriage Rights." He said the decision to deny a visa to an Afghan who married a U.S. citizen but had formerly been a payroll worker in the Taliban-controlled government "continues a long line of Supreme Court cases that hold when it comes to immigration that consular officials have carte blanche to deny a visa and it's very hard to get those denials overturned in federal court."
  • Law360 on June 29, 2015, in "High Court Bolstered Immigrant Removal Rights This Term." On Mata v. Lynch, He noted that the justices ruled that federal appeals courts can decide whether people facing removal should be able to extend deadlines in immigration proceedings. "That's important because it establishes the primacy of federal court jurisdiction," he said. On Kerry v. Din, he noted that the decision was extremely close at 5 to 4, which he said is the closest ruling the Supreme Court has ever issued in consular nonreviewability. "So, I have a faint hope that someday in the not-too-distant future, the court will ultimately recognize that there should be judicial review for at least certain kinds of visa denials," he said.
  • Law360 on June 15, 2015, in "Visa Review Stymied For Now, But More Challenges May Come." With respect to the doctrine of consular absolutism, Mr. Yale-Loehr observed that the Supreme Court declined to disturb this "long-criticized doctrine." He said "[i]t was a little closer this time, in that you only had a plurality, and then you had a concurrence on separate grounds." But the bottom line was that the court reaffirmed consular nonreviewability. He said striking down that doctrine was unlikely given the current makeup of the Supreme Court, but that "hope springs eternal" and that "it's possible that with a new president and new justices, the doctrine of consular absolutism may finally die."
  • Law360 on June 15, 2015, in "Immigrants Get More Court Access Under High Court Ruling." Mr. Yale-Loehr said the decision about the Mexican deportation case "reaffirms that immigrants have some procedural protections" even if they have little constitutional protection.
  • National Law Journal on June 15, 2015. Mr. Yale-Loehr noted that "[t]ogether, the decisions underscore the court's dichotomy on immigration issues: Unlike citizens, immigrants have few substantive constitutional rights, but they can receive some procedural rights." He noted that the decision "continues the much criticized doctrine of consular absolutism. It is ironic that while the Supreme Court actively reviews congressional or executive branch decisions in other areas such as health care, the court continues its hands-off approach in reviewing substantive immigration decisions. It is time to bring immigration law into the mainstream of constitutional law."

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