On Feb 19 2016 by William A. Stock

Supreme Court Justice Scalia’s Complicated Immigration Legacy

This week the legal world paused to mark the passing of Associate Justice Antonin Scalia, acknowledged by all as a brilliant legal mind and a towering influence on the U.S. Supreme Court's jurisprudence for the last 30 years. His characterization as a "conservative" justice might lead to the conclusion that he always took the side of the government against immigrant petitioners to the high court, but that conclusion would be false. Scalia was a reliable vote in favor of deference to administrative agencies on denials of relief to immigrants, and dissented from many of the key immigration cases decided during his time on the bench. He was, however, a reliable vote in favor of legal immigrants facing loss of their permanent resident status because of the interaction between criminal convictions and the overbroad and sometimes poorly drafted immigration statutes relied on by the government as the basis for removing their green card status and deporting them.

Scalia’s belief in the limited role of courts often led him to positions of deference to executive discretion and legislative choices in a series of cases that reached the Supreme Court following the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In 2001, for example, he authored the dissent in INS v. St. Cyr, 533 U.S. 289 (2001), in which the court held that habeas corpus jurisdiction for legal immigrants facing removal for criminal convictions survived Congress’ attempt to eliminate it. Scalia would have let stand Congress’ attempted retroactive changes to a statutory scheme that thousands of legal immigrants had relied upon when facing criminal charges and choosing to plead guilty prior to 1996.

Likewise, Scalia’s “originalist” view of the limited scope of habeas corpus jurisdiction meant he often would have ruled against immigrant petitioners facing detention based on immigration laws, just as he would have ruled against the court’s exercise of habeas corpus jurisdiction in the many cases of Guantanamo Bay detainees (including those of U.S. citizens detained there). He would, therefore, in Demore v. Kim, 538 U.S. 510 (2003), have found no constitutional constraint on Congress’ decision to detain deportable immigrants indefinitely, even if the government was unable to effectuate their removal because their country of origin would not take them back.

Scalia’s insistence on consistency in reading statutory language brought him to the pro-immigrant side in a later indefinite detention case, however. Once the court had construed the mandatory detention statute to contain an implicit rule of reasonableness in Kim (to avoid unconstitutional indefinite detention), a following case sought application of the rule to “arriving aliens.” The government argued the rule in Kim should not be applied to those arriving but not yet admitted to the United States. The government based its position on a long line of cases providing lower levels of constitutional protection for foreign nationals seeking admission to the United States than to those physically present in the United States. Scalia authored the court’s opinion in Clark v. Martinez, 543 U.S. 371 (2005), in which the court extended the rule in Kim to “arriving aliens” refused admission to the United States but who could not be removed, holding that the identical statutory language authorizing the detention of foreign nationals subject to removal had to be applied identically to all foreign nationals, admitted or not.

Scalia’s insistence on strict readings of statutory language often benefited immigrant petitioners before the high court in “crimmigration” cases involving the immigration consequences to permanent residents convicted of crimes in the United States. He consistently voted with the majority of the court in resisting the government’s attempts to read criminal grounds of removal as broadly as possible. A good example of his supporting a strict reading of such statutes was in Leocal v. Ashcroft, 543 U.S. 1 (2004), which cumulated years of litigation in which the government charged immigrants convicted of driving while under the influence as deportable “aggravated felons,” a category of crimes including rape, murder and child molestation. Characterization of a prior conviction as an aggravated felony deprives the charged immigrant of any opportunity to avoid removal based on the individual equities of his or her case. The crime of driving under the influence was not explicitly listed as an “aggravated felony,” but the government obtained many removal orders against green card holders by convincing the Executive Office for Immigration Review, an agency in the U.S. Department of Justice, that DUI fell within the broad definition of a “crime of violence” (a crime in which there was a substantial risk that force would be used). Scalia joined with the unanimous court in holding that DUI, while sometimes causing harm, did not involve “use” of force by the person committing the crime of DUI, allowing many immigrants to show that their community and family ties to the United States were equities that allowed them to remain in the United States in spite of their convictions.

Likewise, Scalia’s frequent support of opinions favorable to criminal defendants in sentencing cases has direct and positive impact on the fates of immigrants who are charged with crimes. Congress frequently used the same broad categories and imprecise language in sentencing statutes, such as the Armed Career Criminal Act (ACCA), as it did in defining the “aggravated felony” category of crimes resulting in near-automatic deportation. The jurisprudence of the “categorical approach” was first articulated by Chief Justice William Rehnquist in Taylor v. United States, 495 U.S. 575 (1990), when Scalia was in his early years on the court. It holds that in applying federal statutory definitions of prior categories of offenses, federal courts must use a uniform federal definition of the crimes based on the minimum statutory conduct necessary to violate the crime, rather than trying to evaluate the particulars of the individual defendant’s prior offense. The categorical approach is broadly applied not just in sentencing enhancement cases, but also immigration cases. Scalia’s recent opinion for the court in Johnson v. United States, 135 S.Ct. 2551 (2015), holding the ACCA’s definition of “violent felony” was void for vagueness in a sentencing enhancement case, has already been used by three circuit courts considering petitions from immigrants to overturn removal orders against permanent residents charged with removal under similar broad and vague statutory language.

At the end of the day, Scalia’s immigration legacy will likely be remembered for those cases such as Arizona v. United States, 132 S.Ct. 2492 (2012), where he angrily dissented from the court’s majority as it struck down large portions of Arizona’s law that made life difficult for immigrants in Arizona. He would almost certainly have voted in this term’s Texas v. United States, No. 15-674, to uphold a judge’s order invalidating President Obama’s proposed deferred action program, which called on undocumented immigrants with United States citizen children to come forward and register with the government, in exchange for a temporary reprieve from deportation. In spite of that legacy, he should also be remembered for his strong jurisprudence of statutory interpretation, requiring Congress to draft legislation precisely if it wants to deny liberty, whether the denial of liberty is in the form of longer prison terms for U.S. citizens or removal from the United States for legal immigrants.

Reprinted with permission from the February 19, 2016 edition of the The Legal Intelligencer © 2016 ALM Media Properties, LLC. All rights reserved.

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