Monday, April 3, 2017

Judge Gorsuch on Immigration

Guest blogger: Chiara Wellman, law student, University of San Francisco

During Judge Gorsuch's time on the Court of Appeals 10th Circuit, he mostly was sympathetic to immigrants, but nevertheless ruled according to current immigration laws. In one case, Alejandre-Gallegos v. Holder, 598 Fed. Appx. 604 (10th Cir. 2015), Judge Gorsuch took the petitioner’s attorney to task for being unprepared and making claims with no supporting evidence. Not only did Judge Gorsuch admonish the attorney for the handling of the case before him, he took the time to investigate if this was an on-going issue. When Gorsuch found out the attorney repeatedly had poorly represented immigrants facing deportation, he began disciplinary proceedings against him.

Immigrants facing deportation are in extremely dire circumstances. They are dealing with the possibility of being separated from loved ones, and uprooted from their homes and communities. Often, an attorney is an immigrant’s only advocate that the client relies on to help stay in the United States. The attorney for Mr. Alejandre-Gallegos had poorly represented immigrants for over a decade. Although prior courts had noted the issue, it took Gorsuch’s thoroughness to realize the huge problem at hand, and to do more than give a warning.

In another of his immigration cases, Judge Gorsuch harshly criticized the Chevron Doctrine. The Chevron doctrine states that when dealing with ambiguities, the court should defer to an agency's interpretation of statutes, unless the interpretation is unreasonable. In Gutierrez-Brizuela v. Lynch, 834 F. 3d 1142 (10th Cir. 2016), Judge Gorsuch wrote the majority and a separate concurring opinion. That case dealt with an immigrant, Mr. Gutierrez-Brizuela, who entered the country illegally. Mr. Gutierrez-Brizuela decided to seek the Attorney General's discretion to adjust his status and afford him permanent residence instead of leaving the country to face a 10 year ban. Both those options were legally available to him at the time.

While the Attorney General's decision on Mr. Gutierrez-Brizuela’s adjustment of status was pending, the Board of Immigration Appeals (BIA) ruled that the Attorney General does not have discretion to adjust status when the 10 year ban applies. In regards to Mr. Gutierrez-Brizuela, the BIA ruled that it did not matter that Mr. Gutierrez-Brizuela sought the Attorney General’s discretion to adjust his status before the BIA decided that the Attorney General did not have that power. The BIA’s interpretation was binding and would be applied retroactively to Mr. Guiterrez-Brizuela’s case according to the Chevron Doctrine. Therefore, Mr. Guiterrez-Brizuela’s only option would be to leave the country for 10 years before being eligible for permanent residence. The 10th circuit ultimately overruled the BIA and decided that the BIA’s interpretation should not be applied retroactively.

In Judge Gorsuch’s concurring opinion, he strongly disagreed with the application of Chevron, arguing that not applying it retroactively is not enough. Gorsuch believes that it should not be applied to judicial decisions at all. He claims that it raises due process and equal protection concerns as well as interferes with the separation of powers. He was concerned this doctrine gave the other branches of government the power to invade people’s rights. He stated the Chevron doctrine, “is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible… but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.” Id. at 1153.

Immigrants today are particularly susceptible to the current administration’s attack on their liberties. Trump is constantly trying to paint immigrants as either criminals, a drain on American resources, or both. He has a rabid focus on repeatedly trying to instill a fear of immigrants and has already tried to unilaterally ban Muslims from entering the country and punish sanctuary cities.

Jude Gorsuch’s reluctance to follow the Chevron Doctrine is a sign that he will not blindly follow the harsh stance of the current administration, and will instead look to the laws, past precedent of the courts, and his own knowledge to make decisions. Although the current immigration laws need reform, it is heartening to know that Gorsuch will not penalize immigrants at the whim of the current president. This should give hope to anyone who is troubled by Trump’s endless bravado and brash decisions. If Gorsuch follows his logic in Gutierrez-Brizuela, he will not allow Trump to overstep his authority as President, and keep him confined to his executive branch powers.


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