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Jorge Alejandro Avalos v. United States

IFP petition · United States Court of Appeals for the Ninth Circuit, No. 23-3944 · judgment December 17, 2025


Pending

Questions presented

An Assistant Field Office Director within Immigration and Customs Enforcement (ICE) ordered Jorge Avalos removed from the United States under 8 U.S.C. § 1228(b). He was not appointed by a “Head[] of Department[],” as the Appointments Clause normally requires for “inferior Officers.” U.S. Const., art. II, § 2, cl. 2. The questions presented are:

  1. Whether a bureaucrat lacks a “continuing position established by law” merely because the disputed acts are part of his full-time job, as the Ninth Circuit held here, contrary to the conclusions of the Second and D.C. Circuits as well as the Office of Legal Counsel; and

  2. Whether a bureaucrat’s last-word authority over whether a noncitizen is removed from the United States constitutes significant authority under the Appointments Clause. prefix

Counsel of record

For petitioner
Jessica Agatstein
Federal Defenders of San Diego, Inc.

For respondent
D. John Sauer
Solicitor General

Case

Conference history
Distributed for 1 conference

Linked docket
26A116

Proceedings

  1. Oct 08 2026
    DISTRIBUTED for Conference of 11/6/2026.
  2. Oct 02 2026
    Waiver of right of respondent United States to respond filed.
  3. Sep 03 2026
    Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due October 26, 2026)
  4. Jul 27 2026
    Application (26A116) granted by Justice Kagan extending the time to file until September 3, 2026.
  5. Jul 17 2026
    Application (26A116) to extend the time to file a petition for a writ of certiorari from August 4, 2026 to September 3, 2026, submitted to Justice Kagan.