Friday, May 14, 2010

More of Elena Kagan on Immigration

Readers of this blog are no doubt interested in how a Justice Elena Kagan might rule on immigration cases in the U.S. Supreme Court. In this regard, we previously reported on (1) the still unresponded to request of the U.S. Supreme Court for the United State to provide its views in Chamber of Commerce v. Candelaria, the Arizona business licensing case that raises important questions of the scope of state (and federal) power to regulate immigration: (2) the position that Solicitor General Kagan took in the landmark case of Padilla v. Kentucky, which allows an ineffective assistance of counsel claim to be premised on incorrect advice about the immigration consequences of a criminal conviction; and (3) the decision of the Solicitor General to side with the noncitizen petioner in favor of judicial review of the denial of a motion to reopen in Kucana v. Holder.

In addition, the N.Y. Times in scouring Justice Thurgood Marshall’s papers for material about Elena Kagan found that, as a law clerk, she cautioned prudence and to not grant cert in a case (U.S. v. Shonde, 803 F.2d 937 (8th Cir. 1986)) in which the noncitizen had been victorious despite the fact that the law in her view favored the Department of Justice.

Elena Kagan also served as a counsel and domestic policy advisor in the Clinton White House. For Tom Goldstein's thorough review of Kagan’s career on SCOTUS blog, click here. A few immigration-related documents written by Elena Kagan are included in the White House papers.

In one memorandum, Kagan considered a recommendation of the Commission for Immigration Reform, headed by the late member of Congress Barbara Jordan, that the old Immigration & Naturalization Service be dismantled. Kagan and her superior, Bruce Reed, in a “Memorandum for the President”, Download Box%20115%20Immigration%20Doc%202[1], disagreed with the recommendation and instead suggested more incremental reform and better separation of the service and enforcement functions within the INS, a position later embraced by the Clinton administration. They reasoned that this measure would be less disruptive than abolishing the INS. The functions of the INS, of course, were later moved to the Department of Homeland Security after its creation in the wake the tragic events of September 11, 2001 (and the old INS inexplicably renewed the visas of several of the noncitizens allegedly involved in the devastation).

In one note on a memorandum analyzing a variety of technical immigration law matters, including analysis of the “stop time” rule in the BIA ruling of Matter of NJB, which the Attorney General reviewed,Kagan wrote to Reed

Lots of legal gobbledlygook; don’t spend much time on it. Instead, read the memo signed by you! (and others).” (emphasis added). Download Box%20115%20Immigration%20Doc%204[1]

Many immigration law junkies might agree that the Immigration & Nationality Act, implementing regulations, and related agency and court decisions are little more than “legal gobbledlygook.”  

Kagan also co-authored a memo analyzing competing proposals to amend the H1-B visa provisions from Senators Kennedy and Abraham.  Download Box%20115%20Immigration%20Doc%205[1]

From these materials, Kagan strikes me as a skillful and careful -- and risk averse -- lawyer.  In my estimation, it is not easy from the limited data to say how as a Justice she might approach immigration laws and decisions.  But, my best guess is that Justice Kagan would be skillful, careful, and risk averse in her approach to immigration on the Court..


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