U.S. Supreme Court Justice Stephen Breyer retired today. When I argued before the U.S. Supreme Court in Luna Torres v. Lynch, 136 S. Ct. 1619 (2016), I had the most amazing experience with him. When the Assistant to the Solicitor General began to speak, Justice Breyer made comments that appeared to indicate that I changed his mind with my opening argument. He cited one of the government’s arguments and said, “I agreed with that when I came in.” He went on to comment on my opening statement to my oral argument and said, “So now, if that’s right, I’m left with only half the problem I thought I was left with.” While I lost that case, Justice Breyer joined in Justice Sotomayor’s dissent. Since he said that he originally agreed with the government and he joined with Justice Sotomayor’s dissent, it appears that I changed his mind with what I said in court.

There is a lot of debate among lawyers about whether oral argument in appellate cases is for “show” or whether judges actually change their minds based upon what is said in court during an oral argument. There are a lot of attorneys who think that judges make up their minds from reading the briefs so that oral argument is not important.  My personal experience is that what happened that day is very rare.  Usually, judges (or justices) hide their positions.  I have had cases where I’ve gone to court and it was clear that a judge was on my side or against me.  However, it’s not very often when a judge indicates that he or she is against you that you can change their mind.  It looks like I was able to change Justice Breyer’s mind. When he made those comments, it was one of the proudest moments that I have ever had in a courtroom.

I hope that Justice Breyer enjoys his retirement.

The Immigration Customs Enforcement (“ICE”) released its year end removal numbers.  There were 409,849 people who were deported.  According to the ICE press release, “approximately 55 percent, or 225,390 of the people removed, were convicted of felonies or misdemeanors – almost double the removal of criminals in FY 2008.val numbers for fiscal year 2012.”  A lot of Republicans have criticized President Obama’s program for providing deferred action for DREAMers and other efforts at exercising prosecutorial discretion in enforcing immigration laws because they view him as not enforcing the immigration laws.  However, what President Obama is doing is prioritizing the limited resources of the ICE.  As a result of this prioritization, the Obama administration has deported double the number of non-citizens with criminal history from 2008.   Based upon these statistics, it would seem that President Obama’s plan is working.  By exercising prosecutorial discretion in non-priority cases, the ICE is able to focus on priority cases involving immigrants with criminal history.