Supreme Court’s Thin Diet of International Law Cases

by Roger Alford

The Supreme Court has an incredibly thin diet for international law cases this term. No blockbuster cases, no major questions of international law, no issues addressing executive power in the foreign affairs arena. Thin, thin, thin.

Thus far it appears that there are only two cases that tangentially address questions of interest to this blog, and neither are particularly significant. One addresses a question of interpretation in the immigration context and another the political question in the context of Consular Report of Birth Abroad. The latter case potentially has important diplomatic implications, concerning whether a child born in Jerusalem must be identified as having a birthplace of “Jerusalem, Israel.” But I rather doubt that the Court will require the State Department to answer that question.

Here’s the ABA’s summary of Judulang v. Holder:

For more than 25 years, the Board of Immigration Appeals (BIA) held that a legal permanent resident (LPR) who is deportable due to a criminal conviction could seek a discretionary waiver of removal under Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. §1182(c), provided that the conviction also would have constituted a waivable basis for exclusion.

In 2005, the BIA abruptly changed course, adding a requirement that the LPR be deportable under a statutory provision that used “similar language” to an exclusion provision. Deportable LPRs who departed and reentered the United States after their conviction, however, may seek Section 212(c) relief under a longstanding “nunc pro tunc” procedure that does not turn on similar language between deportation and exclusion provisions.

Thus, under the BIA’s current view, an LPR who pled guilty to an offense that renders him both deportable and excludable, but under provisions that use dissimilar phrasing, will be eligible for Section 212(c) relief from deportation if he departed and reentered the United States after his conviction, but ineligible if he did not depart. The circuits are split three ways on the lawfulness of the BIA’s new interpretation.

The question presented is:

Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United Staes between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the INA.

Here’s Oyez’s summary of M.B.Z. v. Clinton

Menachem Binyamin Zivotofsky is a United States citizen born on October 17, 2002 in Jerusalem. In December 2002, Zivotofsky’s mother filed an application for a Consular Report of Birth Abroad and a United States passport for petitioner, listing his place of birth as “Jerusalem, Israel.” United States diplomatic officials informed petitioner’s mother that State Department policy required them to record “Jerusalem” as petitioner’s place of birth, which is how petitioner’s place of birth appears in the documents he received.

On his behalf, Zivotofsky’s parents filed this suit against the Secretary of State seeking an order compelling the State Department to identify petitioner’s place of birth as “Jerusalem, Israel” in the official documents. The United States District Court for the District of Columbia initially dismissed the complaint after concluding that petitioner lacked standing, and that the complaint raised a nonjusticiable political question. United States Court of Appeals for the D.C. Circuit reversed and remanded, concluding that petitioner had standing and that a more complete record was needed on the foreign policy implications of recording “Israel” as Zivotofsky’s place of birth.

On remand, the State Department explained, among other things, that in the present circumstances if “Israel” were to be recorded as the place of birth of a person born in Jerusalem, such “unilateral action” by the United States on one of the most sensitive issues in the negotiations between Israelis and Palestinians “would critically compromise” the United States’ ability to help further the Middle East peace process. The district court again dismissed on political question grounds. The court of appeals affirmed, holding that Zivotofsky’s claim is foreclosed because it raises a nonjusticiable political question.


Does the political question doctrine deprive a federal court of jurisdiction to enforce a federal statute that explicitly directs the Secretary of State how to record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport?

4 Responses

  1. A reader begs to differ with my conclusion about M.B.Z v. Clinton.  From his email:

    “Respectfully, I wonder whether you might have overlooked an aspect of the passport case, Zivotofsky v. Clinton.

    Zivotofsky presents two questions.  The first, as Prof. Alford noted, is about the political question doctrine.

    The second is:

    Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President’s power to recognize foreign sovereigns.

    That strikes me as a fairly important question.  As far as I am aware, the Supreme Court has not directly addressed whether the President may disregard an act of Congress based on his (implied) power to recognize foreign sovereigns.

    The Supreme Court added the second question when it granted certiorari.  That move may indicate that the Court is leaning toward Judge Edwards’ view that the political question doctrine does not apply in this case, which would be a fairly significant holding in itself.

    Zivotofsky is definitely worth watching.”

  2. Roger, I agree with the reader.  MBZ strikes me as one of those cases that could supply a vehicle for some broad-brushed pronouncements on separation of powers in the context of foreign relations.

  3. What about the interplay between the Uruguay round and the constitutional claims in the copyright case?

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