                 Cite as: 559 U. S. ____ (2010)           1

                   ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES
       WILSON JOHN MACHADO AND JOREMA 

          CABRERA ARELLANO v. ERIC H. 

             HOLDER, JR., ATTORNEY

                  GENERAL

   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
   STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
              No. 08–7721. Decided March 1, 2010

  The motion of petitioners for leave to proceed in forma
pauperis and the petition for a writ of certiorari are
granted. The judgment is vacated, and the case is re
manded to the United States Court of Appeals for the
Fourth Circuit for further consideration in light of the
position asserted by the Solicitor General in her brief for
the respondent filed August 26, 2009.
  CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,
JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.
  I dissent from the Court’s decision to grant the petition,
vacate the judgment, and remand the case. The Court
does this in deference to the Government’s suggestion that
the Court of Appeals ignored petitioners’ nonconstitutional
claim of ineffective assistance of counsel. The Government
does not, however, take the position that the judgment
reached by the Court of Appeals was incorrect, and this
Court has not independently examined the merits of that
judgment. In such circumstances, there are insufficient
grounds for vacating the judgment below. See Nunez v.
United States, 554 U. S. ___, ___ (2008) (SCALIA, J.,
dissenting).
  This disposition is especially inappropriate in this case,
as petitioners do not appear to have raised—in the Court
of Appeals or in their petition for certiorari—the claim
that the Government asserts was ignored by the Court of
Appeals. Petitioners argued below that their counsel’s
2                   MACHADO v. HOLDER

                   ROBERTS, C. J., dissenting

poor performance deprived them of their constitutional
right to the effective assistance of counsel. But they did
not explicitly assert a right to effective assistance based on
any source of law other than the Constitution. In their
petition for certiorari, moreover, petitioners disclaimed
any nonconstitutional basis for relief when they argued
that, by denying the existence of a constitutional right to
the effective assistance of counsel, the Fourth Circuit’s
decision “allow[s] no recourse for a particular alien against
dishonest or corrupt immigration practitioners.” Pet. for
Cert. 11 (emphasis added). This sentence would make no
sense if petitioners were advancing both constitutional
and nonconstitutional grounds for relief on their claim.
  Instead of granting, vacating, and remanding, I would
deny the petition for certiorari.
