In a lawsuit regarding the environmental impact of Navy exercises, the Supreme Court issued a decision which may impact immigration cases, by affecting the standard for stays of removal. The Govt argued that the "mere possibility" of harm was insufficient for entry of injunctive relief, arguing that a showing of a "likelihood" of harm was necessary. The Court agreed.
We agree with the Navy that the Ninth Circuit’s “possibility” standard is too lenient. Our frequently reiteratedstandard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Los Angeles v. Lyons, 461 U. S. 95, 103 (1983); Granny Goose Foods, Inc. v. Teamsters, 415 U. S. 423, 441 (1974); O’Shea v. Littleton, 414 U. S. 488, 502 (1974); see also 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.1, p. 139 (2d ed.1995) (hereinafter Wright & Miller) (applicant must demonstrate that in the absence of a preliminary injunction, “the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered”); id., at 155 (“a preliminary injunction will not be issued simply to prevent the possibility of some remote future injury”). Issuing apreliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterizationof injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U. S. 968, 972 (1997) (per curiam).
It is interesting to note that the following sentence in the Court's opinion suggests that the whole issue is dicta, as the 9th Cir held that the harm was a "near certainty." Regardless, the Court's opinion sounds remarkably clear on that point.
As Justice Ginsburg points out in dissent, "courts have evaluated claims for equitable relief on a “sliding scale,” sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high. 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.3, p. 195 (2d ed.1995)." It appears to me that such precedent may be overturned by this decision.
The Supreme Court granted cert to resolve the question of whether a defendant in an Aggravated Identity Theft prosecution has to be knowingly using a fake ID that belongs to someone else (as opposed to it belonging to no one). The circuits are split on the question, which seems to arise most frequently in the prosecution of undocumented individuals caught working with fake papers.
1st, 9th, and DC cirs interpret statute narrowly:
United States v. Godin, No. 07-2332, 2008 WL 2780646, at *1 (1st Cir. July 18, 2008) (“[W]e hold that the ‘knowingly’ mens rea requirement extends to ‘of another person.’ In other words, to obtain a conviction under § 1028A(a)(1), the government must prove that the defendant knew that the means of identification transferred, possessed, or used during the commission of an enumerated felony belonged to another person.”); United States v. Miranda-Lopez, No. 07-50123, 2008 WL 2762392, at *5 (9th Cir. July 17, 2008); United States v. Villanueva-Sotelo, 515 F.3d 1234, 1235 (D.C. Cir. 2008)
8th, 11th, and 4th cirs interpret crim liability broadly:
United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir. 2008) (“the Government was not required to prove that Mendoza-Gonzalez knew that [the person whose name and social security number he used] was a real person to prove he violated § 1028A(a)(1)”); United States v. Hurtado, 508 F.3d 603, 610 (11th Cir. 2007); United States v. Montejo, 442 F.3d 213, 217 (4th Cir. 2006)
Mendoza-Gonzalez v. United States, cert. pet. pending (No. 08-5316)
The circuits have split on the question of whether Aggravated Identity Theft requires the knowledge that the person whose data is used actually exists. In Mendoza-Gonzalez, the 8th Cir held that proving such knowledge is unnecessary. Petitioner (represented by the Federal Public Defender for Iowa), sought cert. The Solicitor General has acquiesced in the cert petition filed in Mendoza-Gonzalez, making it exceedingly likely that cert will be granted.
Interestingly, a separate cert petition on the same issue was filed one week later, but represented by the Stanford Supreme Court Clinic, Akin Gump, and Howe & Russell. The SG has recommended that the second case be "held" pending briefing in the first case. See scotusblog discussion
The Stanford Supreme Court Clinic, Akin Gump, and Howe and Russell filed a cert petition seeking to resolve a circuit split regarding whether an undocumented person who uses fake documents is liable for aggravated identity theft, even if the person did not know that the documents belonged to anyone.
A cert petition has been filed with the Supreme Court, asking the SupCt to resolve a circuit split regarding how to handle adjustment of status applications for arriving aliens.
[Analysis: if USCIS were able to competently handle applications, this issue would not need to come before the Courts of Appeals. Trying to get USCIS to adjudicate AOS applications for arriving aliens in proceedings would be a minor miracle, and after a final BIA order, even more difficult, notwithstanding their clear jurisdiction, and seemingly clear case law that even an outstanding removal order is not a ground of inadmissibility requiring advance permission to apply. See Matter of C- H-, 9 I&N Dec. 265 (Asst. Comm. 1961) - CR]
Supreme Court 
