Supreme Court Hears Oral Argument in Nken v. Filip, on Question of Standard of Review for Stays of Removal Pending Appeal

Yesterday the Supreme Court heard the argument in Nken v. Filip (formerly Nken v. Mukasey), which asks whether an alien who seeks a stay of deportation pending appeal must prove by clear and convincing evidence that his deportation is prohibited by law.  The majority of courts have held that the ordinary standard for stays pending appeal continues to apply to such stays despite Congress’s enactment in 1996 of legislation providing that “no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law,”8  U.S.C. sec. 1252(f)(2).

The question is especially important in cases like Mr. Nken’s, in which the alien’s underlying claim is that he will suffer severe persecution or even death if returned to his country.  If such aliens must demonstrate their right to stay by clear and convincing evidence, i.e., more than a preponderance of the evidence, to obtain a stay, then the expected result would be that some aliens with valid claims would be returned to their home countries and possibly subject to persecution before having the chance to have their appeals decided on the merits.

Continue ReadingSupreme Court Hears Oral Argument in Nken v. Filip, on Question of Standard of Review for Stays of Removal Pending Appeal

In the Supreme Court, ACCA Is Back-a

Recently, the Supreme Court has been taking a lot of interest in the Armed Career Criminal Act, which requires that a minimum fifteen-year prison term be imposed on certain defendants with three or more prior convictions for serious drug offenses or crimes of violence.  As I discussed here, the ACCA has proven to be an interpretive nightmare, with courts struggling for more than two decades now to decide exactly which prior convictions count as triggers for the mandatory minimum.  With several recent opinions and cert grants, the Supreme Court now seems intent on addressing some of the many circuit splits in the ACCA case law.

Of particular note last year was the Court’s decision in Begay v. United States, in which the Court held that DUI is not a “crime of violence.”  Now, following in Begay’s footsteps, the Court held today in Chambers v. United States (No. 06-11206) that failure to report to prison is not a crime of violence. 

Chambers does not purport to revise the analytical framework used in Begay, but I am struck by how much closer the Chambers opinion seems to be to Justice Scalia’s concurrence in Begay than to the majority opinion in the earlier case.  Has Scalia convinced a few of his colleagues to switch sides?

Continue ReadingIn the Supreme Court, ACCA Is Back-a

Ruan on the Accommodation of Religious Speech in the Workplace

In the fall issue of the Marquette Law Review, Professor Nantiya Ruan of the University of Denver Sturm College of Law has written an interesting article entitled “Accommodating Respectful Religious Expression in the Workplace.”  It is always hard to summarize a serious piece of scholarship in the few sentences that a blog post will permit and I am, of course, likely to emphasize those aspects of the piece that I found intriguing. It is also true, since I have decided to post a response and not a blurb, that I will emphasize those things that I see differently. So, with advance apologies to Professor Ruan, here is how I read the article.

Ruan posits an inconsistency between the emerging willingness of the Supreme Court to protect religious expression in public spaces (as illustrated by the Ten Commandments cases of 2005) and its rather narrow reading of the requirements to accommodate religious expression in the workplace under Title VII, where employers need incur no more than a de minimis burden to accommodate religious expression and practice.

I am sympathetic to Ruan’s arguments for greater accommodation of religious expression in the workplace. She does a nice job of advancing the notion that religion is fundamental to individual identity, although I would have added, as I have in recent papers, the notion that mandated secular spaces harm religion.

But I want to comment on her claim of an inconsistency between the recent trend toward toleration of religion in the public square and the treatment of religion in the workplace.

Continue ReadingRuan on the Accommodation of Religious Speech in the Workplace
Newer Posts
Older Posts