Monday, February 29, 2016
In light of Supreme Court Justice Antonin Scalia’s untimely passing earlier this month, ImmigrationProf provides this overview of his immigration jurisprudence. His immigration opinions demonstrate that, although Justice Scalia was never one to hide his political views, his firmly held legal principles about statutory interpretation and deference to agency action, deeply influenced his immigration opinions.
Notable Majority Opinions
Justice Scalia wrote his first immigration decision for the Supreme Court in 1987 in Kungys v. U.S. The case involved a naturalized citizen who the Department of Justice accused of executing thousands of Jewish Lithuanians in 1941, before he came to the United States. In an action brought to revoke Kungys’s citizenship, Justice Scalia for the Court determined the materiality standard to apply to the “concealment or misrepresentation” clause and the false testimony provision of the “illegally procured” clause of 8 U.S.C. § 1451, which authorizes the revocation of naturalization. Justice Scalia held, in an opinion focusing on the proper interpretation of the statute, that the appropriate standard was whether the concealments or misrepresentations (in this instance, Kungys’ place and date of birth) had a “natural tendency to influence the [government's] decision.” Justice Scalia concluded that Kungys’ misrepresentations in his naturalization petition were not “material.” The case was remanded to the court of appeals, with Justice Scalia emphasizing the “unusually high burden of proof in denaturalization cases.”
In INS v. Elias-Zacarias (1992), Justice Scalia for the Court examined whether a Guatemalan asylum-seeker could obtain asylum based on the claim that a guerrilla organization attempted to coerce him into performing military service. Relying on the “ordinary meaning” of the statute, he found that Elias-Zacarias had failed to express a political opinion hostile to the persecutor in refusing to join the guerilla movement and thus could not establish “persecution on account of political opinion.” Consequently, Justice Scalia determined that Elias-Zacarias failed to establish a well-founded fear of persecution with sufficient “clarity necessary to permit reversal” of the Board of Immigration Appeals' finding to the contrary. The practical effect of basing asylum on the asylum-seeker’s, and not the persecutor’s, political opinion has been the imposition of a heavy burden on asylum-seekers; they are required not only an affirmative expression of political opinion, but one hostile to their persecutors. In many countries, including Guatemala, persons often try to keep their political views to themselves to survive. Under Elias-Zacarias, these people are generally ineligible for asylum.
Writing for the majority in Reno v. Flores (1993), Justice Scalia, with characteristic deference to administrative agencies, upheld an Immigration and Naturalization Service (INS) policy that provided that detained unaccompanied minors could only be released to parents, legal guardians, or close relatives, but not “other responsible adults.” Respondents challenged the regulation, 8 C.F.R. 242.24, establishing this policy, asserting that it violated due process, equal protection, and went beyond the scope of the Attorney General’s discretion to make detention and release decisions. Justice Scalia reversed the lower court ruling invalidating the regulation, holding that the INS policy was a “reasonable response to the difficult problems presented” by the apprehension of unaccompanied minors. He acknowledged that other policies may be better, but declined to act as a “legislature charged with formulating public policy.”
In an opinion for a unanimous Court, Justice Scalia in INS v. Yueh-Shaio Yang (1996) held that the U.S. government may take into account acts of fraud committed by a noncitizen in connection with entry into the United States. He noted that “[a]lthough it is the INS's settled policy to disregard entry fraud, no matter how egregious, in making the waiver determination,” this policy is the “INS's own invention and is not required by the statutory text.” In adhering to the statutory text, Justice Scalia deferred to the judgment of the Attorney General to distinguish between noncitizens who engaged in a pattern of fraud and those who committed a “single, isolated act of misrepresentation.”
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). In 1999, Justice Scalia applied a provision of IIRIRA for the Court in Reno v. American-Arab Anti Discrimination Committee. The “L.A. 8” brought suit, claiming that they were targeted for removal because of their affiliation with a politically unpopular group (the Popular Front for the Liberation of Palestine). Applying a provision of IIRIRA, Justice Scalia held that the Court lacked jurisdiction to second-guess the Attorney General’s unreviewable discretion to bring removal orders against a noncitizen. Although the Court dealt with the petitioners’ First Amendment claim only as a secondary matter, the decision has been viewed by some as a blow to First Amendment rights of noncitizens. Essentially, the opinion implied that the free speech rights of noncitizens were irrelevant if the government had an independent reason to deport them.
In a somewhat surprising turn of events, Justice Scalia extended the holding of an immigration case in which, four years earlier, he had dissented (Zadvydas v. Davis, below). Zadyvas held that the U.S. immigration authorities could detain admitted aliens only so long as “reasonably necessary” to effectuate removal. Justice Scalia, in Clark v. Martinez (2005), extended this holding to inadmissible aliens as well. As a result of this decision, several hundred long-term detainees were ordered released from the custody. Justice Scalia also found that Zadyvas’s presumptive detention period of six months governed a case involving two inadmissible Cuban nationals.
On the same day as Clark v. Martinez, Justice Scalia wrote for the Court in Jama v. Immigration and Customs Enforcement (2005). In looking at whether a country’s inability to consent in advance to a noncitizen’s removal, Justice Scalia held that though nonacceptance could be “one of the factors considered in determining whether removal to a given country is impracticable or inadvisable,” the Immigration and Nationality Act did not make this dispositive. In response to petitioner’s claim that an acceptance requirement is “manifest in the entire structure” of the INA, Justice Scalia declined to make such an inference, given that he read the express language of the statute as indicating otherwise.
Although not writing for a majority of the Court, Justice Scalia wrote for a plurality in Kerry v. Din (2015). The plurality reasoned that, “even accepting the textually unsupportable doctrine of implied fundamental rights,” a U.S. citizen wife was not deprived of a fundamental liberty interest when her noncitizen spouse was denied entrance into the United States because of his alleged terrorist activity. To find such a right would, as Justice Scalia’s wrote, require “diluting the meaning of a fundamental liberty interest.” He characterized Congress’s concern for the unity of immigrant families as a “matter of legislative grace rather than a fundamental right.” Rejecting the idea that Din had an identifiable right protected by due process, Justice Scalia concluded that the explanation given to Din by the State Department regarding her husband’s denial of entry was “more than the Due Process Clause required.”
Notable Concurring and Dissenting Opinions
In INS v. Cardoza-Fonseca (1987), a major decision on the different evidentiary burdens for asylum and withholding of deportation, Justice Scalia concurred in the judgment. He emphasized that he agreed "with the Court that the plain meaning of `well-founded fear' and the structure of the Immigration and Nationality Act (Act) clearly demonstrate that the `well-founded fear' standard [for asylum] and the `clear probability' standard [for withholding of removal] are not equivalent." Justice Scalia relied on the plain language of the statute for that conclusion and rejected the majority's analysis of legislative history, which he criticized frequently and vociferously. Because the plain language of the statute answered the question, Justice Scalia statute thought that the Court need not discuss deference to the U.S. government's interpretation of the statute under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984).
In what was criticized by Supreme Court observers as nothing less than a political attack on the Obama administration’s immigration policies, Justice Scalia’s dissent in Arizona v. United States (2012) would have upheld Arizona’s controversial immigration enforcement law known as SB 1070 in its entirety. He characterized the majority’s decision as a denial of the power of the states “to exclude from the sovereign’s territory people who have no right to be there.” He contended that Arizona as a sovereign state had the right to confront the “illegal immigration problem,” because its citizens felt “under siege” by large numbers of immigrants who “invade their property,” “strain their social services,” and “place their lives in jeopardy.” Justice Scalia argued that federal failure to “remedy the problem” justified the Arizona law.
In Zadvydas v. Davis (2001), the majority, in an opinion written by Justice Breyer, held in part that the Immigration and Nationality Act did not allow the Attorney General to indefinitely detain immigrants pending removal, with the presumptive detention period is six months. Justice Scalia declared that a noncitizen under final removal order has no legal right to release into the United States. Because such a person has “totally extinguished whatever right to presence in this country he possessed,” the Attorney General, in Justice Scalia's view, retained unbridled discretion over his custody.
Some might reflexively label Justice Scalia as “conservative” or “anti-immigrant” in his immigration jurisprudence. However, a closer look reveals that Scalia’s political views did not exclusively guide his opinions. Also apparent was his focus on deference to administrative agencies (at least so long as they were interpreting the statutes consistently) and a general contempt for judicial activism. Another aspect of his general approach was his insistence on the interpretation of immigration statutes according to their ordinary meaning. For example, Justice Scalia, in adhering to the language of the immigration statute, voted in favor of noncitizens in several crimmigration cases, including Moncrieffe v. Holder (2013). (holding that a low-level marijuana offense could not be considered an “aggravated felony” for deportation purposes under the immigration statute) and Mellouli v. Lynch (2015) (reversing a removal order based on a drug paraphernalia conviction).” (“Justice Scalia’s crimmigration legacy” is reviewed here.). Although it may be true that more of Justice Scalia’s opinions hurt immigrants than helped them, his pro-immigrant rulings and devotion to certain doctrinal and other approaches should not be ignored from discussions of his immigration legacy.
Sadie Weller is a law student at the University of California, Davis School of Law.