The Future of Immigration with the new Supreme Court

With the confirmation of Brett Kavanaugh to the Supreme Court, we can expect a slight rightward tilt in the court’s opinions. Applied to the field of immigration, this means the Supreme Court is likely to side more frequently with the Trump Administration on its enforcement centered approach rather than a human impact one. Justice Kavanaugh is replacing Anthony Kennedy, who as the frequent “swing vote” had traditionally favored civil liberties over government power. Kavanaugh’s record on immigration shows an alarming view regarding the rights of aliens. For instance, in his dissenting opinion in Agri Processing Co. Inc v. National Labor Relations Board he offered to deprive immigrants’ equal protection under the law, regardless of status, arguing that undocumented immigrants have no labor rights as employees. (Ironically, this view incentivizes employers to hire undocumented workers to avoid labor law.)  

Justice Kavanaugh’s ultra-conservative views on immigration will have a direct impact on a case currently before the Supreme Court dealing with the rights of immigrants. The case is Nielson v. Preap, where at issue is one aspect of the government’s right to hold criminal immigrant detainees without the chance to seek bond while they contest their removal, or what is referred to as “mandatory detention.” Under current law, the government can hold, without bond, aliens convicted of certain crimes and who have just been released from incarceration. The specific section of the statute at issue reads: “[t]he Attorney General shall take into custody any alien who is inadmissible by reason of having committed any offense covered in section when the alien is released.” The Plaintiffs, many of whom are lawful permanent residents, had been convicted of certain crimes, served a prison term, and since exhibited demonstrable good conduct after release from incarceration. The Trump administration wishes to expand the application of the “mandatory detention” provision to detain aliens during their removal process, without the possibility of bond, who had served time for certain convictions, including those who had been released many years prior. The plaintiffs believe that they should be able to seek bond in their removal proceedings if they have had a noncriminal life since their release. Hence, the question before the Supreme Court is whether such aliens are exempt from the “mandatory detention” provision. 

In this case, it is likely that Justice Kavanaugh will side with the government. He has had a string of opinions against the rights of aliens of all statuses. He has ruled that undocumented workers are unable to vote in union elections and that immigrants in detention cannot have access to abortion. He has also questioned the validity of popular non-immigrant programs, such as the Optional Practical Training (OPT) that gives recent F-1 student graduates a temporary right to work and temporary specialized foreign labor programs, such as H-1B and L-1B. Kavanaugh has said of the former that F-1 students cannot also be workers and in the latter that U.S. companies should have to recruit and train Americans to perform specialized tasks when temporary foreign workers that already have the required skills are available. We anticipate Kavanaugh to continue his record of overenforcement on the Supreme Court. In fact, he has already shown this in his remarks in oral arguments of Nielsen v. Preap, saying that the mindset of those who wrote the law at issue was “harshness.” Kavanaugh’s view appears to be assuming absolute executive enforcement power unless otherwise mentioned. In the absence of a specific time limit in the law, Kavanaugh does not see fit to impose any on the government in this case.

With Kavanaugh on the Court, along with conservatives Alito, and Thomas, there are at least 3 reliable voices for increasing government power in enforcement and decreasing the rights of immigrants. The other Trump appointee, Justice Gorsuch, was assumed to be of the same mindset as the other conservatives. But in oral arguments on Nielsen, Gorsuch showed concerns of not limiting the government’s power. It is possible that over time he isn’t as reliably pro-Trump as at first assumed. There are also four voices on the liberal end (Sotomayor, Kagan, Breyer, and Ginsburg) who are assumed to continue to uphold a view that protects the rights of immigrants. In the middle of the new court is Chief Justice John Roberts, who is likely to side with the conservatives on most issues. While Roberts ruled with the government on the Travel Ban, saying the President has the ultimate right to add temporary immigration restrictions if he sees fit, Roberts has expressed concerns in giving the executive unlimited power. He may do so again in Nielsen.

One example of Roberts’ concern with unlimited power was his criticism of the President’s desire to be able to retroactively revoke citizenship for immigrants who were discovered to have lied about or omitted information that is not “material” to their being granted citizenship. Roberts felt that allowing the government to be able to revoke citizenship for immigrants, perhaps years after the fact, for trivial matters would be unwarranted and dangerous. For this reason, Roberts may be a swing vote on Nielsen v. Preap (though he should be considered as leaning in favor of the government in immigration matters as a whole).

The world of U.S. immigration continues to become more alarming for immigrants and temporary workers alike. Our firm is ready to continue to support these populations through the challenges posed by the Trump administration. If you feel affected by the governments stance toward overenforcement, it is critical you obtain experienced immigration counsel. Contact us today for a review of your case and to learn how to preserve your rights.