"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
As 2018 draws to a close, I hope you’ll have time to listen to this week’s episode of This American Life. Act One of the show is a segment produced by Zoe Chace about the Iranian families, separated by the Trump administration’s travel ban, who are reuniting at the Haskell Free Library and Opera House, a library straddling the U.S.-Canada border. I wrote about the reunions for Reuters last month, and spoke with Zoe about what I saw when I visited the library.
You can also watch the video version of the story my colleague Zach Goelman produced here.
Hope you all have a wonderful new year.
Best,
Yeganeh
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Remember, either Chief Justice John Roberts or Retired Justice Anthony Kennedy could have stopped this nonsense; both chose to “swallow the whistle” instead. So, real human beings suffer unnecessarily.
And, to the extent that either thought that their weak-kneed pleas for some civility and sanity from Trump in the future would accomplish anything, we can see the results. After Trump attacked Federal Judges and Roberts personally, the Chief Justice finally got wise and stopped (at least temporarily) facilitating Trump’s cruelty, irrationality, and abuses of Executive Power.
The future of our Republic could well depend on the Chief Justice’s continued willingness to stand up for individual rights and institutional integrity against Trump’s corrupt attacks. Depending on how he performs, he could go down as one of the greatest or worst Chief Justices.
Justice Anthony Kennedy delivers speaks at the White House on April 10, 2017, in Washington.
Chip Somodevilla/Getty Images
It was always more fan fiction than reality that Justice Anthony Kennedy was a moderate centrist. Democrats liked to soothe themselves with the story that Kennedy was a moderate because he’d provided the fifth vote to support continued affirmative action, reproductive rights, and gay rights and had strung the left along with the tantalizing promise of someday finding an unconstitutional political gerrymander. But we always knew that Kennedy was a conservative, indeed a very conservative conservative. Recall that in the famous study done in 2008 by Richard Posner and William Landes, “Four of the five most conservative justices to serve on the Supreme Court since the time of Franklin Roosevelt, including [John] Roberts and [Samuel] Alito, are currently sitting on the bench today.” And Kennedy? He was ranked in that study as the 10th most conservative justice in the past century.
To the extent we wrote paeans to Kennedy, it was for his occasional defections in areas that materially affect the lives of millions of people—women, minorities, LGBTQ couples, voters, Guantanamo detainees. And to be sure, each of those votes was well worth it. But we knew that for each such vote, there was a Bush v. Gore, a Citizens United, a Shelby County. And this term ended, perhaps fittingly, with Kennedy voting with the conservatives to hobble public-sector unions, to support mandatory arbitration clauses and voter purges, and to increase the unchecked power of an already imperial presidency. As Richard Hasen noted on Tuesday, Kennedy’s work here was clearly done. His concurrence in the Muslim ban case essentially signaled that Kennedy had all but given up on the notion of the judiciary as a meaningful check on the other two branches. As Hasen correctly called it, that concurrence landed as “a general statement of judicial powerlessness to solve social problems and an abdication of responsibility on the part of the courts to enforce key parts of the Constitution, in favor of a plea for self-restraint on the part of elected officials.” From a man who devoted a career to the proposition that the courts alone could fix things, it sounded in the key of “I’m out.”
The man who wanted everyone to speak to one another civilly and respectfully did what everyone else has done this year and threw in thetowel.
There will be myriad theories and hypotheses about why Kennedy all but gave up on his project of centrism, civility, norm preservation, and institutional self-preservation this year. I’ve never heard him speak so eloquently as when he was defending those values and celebrating the extraordinary role American courts and judges have played to foster such values in democracies around the world. One senses in his cri de coeur in NIFLA, Tuesday’s abortion-speech case, that he is viscerally bothered by progressive states like California attempting to be “forward thinking” (read: authoritarian) when it comes to truth in advertising around reproductive options. One senses in his vision of uncivil discourse in the Masterpiece Cakeshop case a growing frustration with what he sees as impolite discussions about religious liberty issues he wanted us to discuss civilly. One senses in his concurrence in the travel ban case a sort of stutter-step apology to “an anxious world” that watches the norms and institutions of constitutional democracy crumble.
As Mark Stern and I noted on Tuesday, it was hard to see Kennedy’s concurrence in that case as anything more than a concession that the last adult in the room was now leaving the building. Maybe it’s a fitting end to his career to say that the man who wanted everyone to speak to one another civilly and respectfully did what everyone else has done this year and threw in the towel. It’s hardly a stretch to say that Kennedy’s lasting caution from Obergefell—the marriage equality decision—was his request that the nation resolve the oncoming conflict between gay rights and religious dissenters by “engag[ing] those who disagree with their view in an open and searching debate.”
Yeah, that didn’t happen.
And so the formerly “centrist” Anthony Kennedy ended his Supreme Court career by taking sides, not simply in the spate of bombshell 5–4 decisions that came out in recent weeks. He took sides in a rhetorical war about the suffering of Christian bakers and pregnancy centers, and the language of “no you’re the radical” he now directs at liberals with whom he could once find common cause. It wasn’t so much that Kennedy ever represented the “center” of the court. He was no more the center than John Roberts will be the center of a vastly more conservative post-Kennedy Supreme Court. But Kennedy did become, for a time, a symbol of certain values around judging and justice—of acute concern that both sides be heard, of respect for the rule of law, and of solicitude for at least some communities that were invisible to his colleagues on the right. And to the extent that this was the center, it is perhaps apt that it falls away at the end of this term. Those institutional and rhetorical values feel like the relic of another time. Neither Sonia Sotomayor nor Samuel Alito has any patience for that kind of signaling anymore.
Democrats should rightly be terrified that Kennedy’s legacy around gay rights, reproductive rights, affirmative action, some kinds of racial justice, and student prayer are in immediate peril. And Democrats can now be fully assured that the Supreme Court will not step in to stop Donald Trump’s excesses. And to be sure, the reason the court will not stand up to future acts of Trumpism is that Kennedy, who tried to be the bridge at the court for so many decades, gave up and joined Team Trump.
Many of us predicted that Kennedy would not allow Trump to replace him with someone who would dismantle his legacy. We were wrong. Many of us believed that a lifelong devotee of dignity, civility, and the rule of law would not want his work tarnished by a president who routinely attacks individual judges and the very notion of an independent judiciary. We were wrong. That two of Anthony Kennedy’s last judicial acts included a letter that opened “My dear Mr. President” and a vote to grant that same president a virtual blank check on the national security front certainly suggests that nothing about a president who lies, bullies, and destabilizes the rule of law was any kind of real impediment to Kennedy’s departure.
We will debate in the coming months whether Kennedy tacked back to the right this year or if he was never anything but a staunch conservative who enjoyed occasional casual day trips to the left side of the bench. But one thing is beyond doubt: If there was anything like a “moderate center” inside the only branch of government not broken by polarization, it’s gone. Even the idea of such a thing is gone. For any of us who clung to such symbols, it’s a bracing reminder that there is no longer a center, or even a center built of make-believe.
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Trump diminishes and corrupts every sycophant and toady, robed or not, who associates with, supports, or helps enable him and his White Nationalist Empire. Kennedy is no exception. Law is in the here and now. Actions speak louder than words. A judge is part of the problem or part of the solution. Kennedy has cemented his position among the former by failing to take action to be part of the latter.
MAJORITY OPINION: Justice Sotomayor for herself and seven others.
CONCURRING OPINION: Justice Kennedy
DISSENTING OPINION: Justice Alito
KEY QUOTE FROM MAJORITY:
Unable to find sure footing in the statutory text, the Government and the dissent pivot away from the plain language and raise a number of practical concerns. These practical considerations are meritless and do not justify departing from the statute’s clear text. See Burrage v.United States, 571 U. S. 204, 218 (2014).
The Government, for its part, argues that the “adminis- trative realities of removal proceedings” render it difficult to guarantee each noncitizen a specific time, date, and place for his removal proceedings. See Brief for Respond- ent 48. That contention rests on the misguided premise that the time-and-place information specified in the notice to appear must be etched in stone. That is incorrect. As noted above, §1229(a)(2) expressly vests the Government with power to change the time or place of a noncitizen’s removal proceedings so long as it provides “written notice . . . specifying . . . the new time or place of the proceedings” and the consequences of failing to appear. See §1229(a)(2); Tr. of Oral Arg. 16–19. Nothing in our decision today inhibits the Government’s ability to exercise that statu- tory authority after it has served a notice to appear specify- ing the time and place of the removal proceedings.
The dissent raises a similar practical concern, which is similarly misplaced. The dissent worries that requiring
Cite as: 585 U. S. ____ (2018) 19
Opinion of the Court
the Government to specify the time and place of removal proceedings, while allowing the Government to change that information, might encourage DHS to provide “arbi- trary dates and times that are likely to confuse and con- found all who receive them.” Post, at 8. The dissent’s argument wrongly assumes that the Government is ut- terly incapable of specifying an accurate date and time on a notice to appear and will instead engage in “arbitrary” behavior. See ibid. The Court does not embrace those unsupported assumptions. As the Government concedes, “a scheduling system previously enabled DHS and the immigration court to coordinate in setting hearing dates in some cases.” Brief for Respondent 50, n. 15; Brief for National Immigrant Justice Center as Amicus Curiae 30– 31. Given today’s advanced software capabilities, it is hard to imagine why DHS and immigration courts could not again work together to schedule hearings before send- ing notices to appear.
Finally, the dissent’s related contention that including a changeable date would “mislead” and “prejudice” nonciti- zens is unfounded. Post, at 8. As already explained, if the Government changes the date of the removal proceedings, it must provide written notice to the noncitizen, §1229(a)(2). This notice requirement mitigates any poten- tial confusion that may arise from altering the hearing date. In reality, it is the dissent’s interpretation of the statute that would “confuse and confound” noncitizens,post, at 8, by authorizing the Government to serve notices that lack any information about the time and place of the removal proceedings.
E
In a last ditch effort to salvage its atextual interpreta- tion, the Government invokes the alleged purpose and legislative history of the stop-time rule. Brief for Re- spondent 37–40. Even for those who consider statutory
20 PEREIRA v. SESSIONS Opinion of the Court
purpose and legislative history, however, neither supports the Government’s atextual position that Congress intended the stop-time rule to apply when a noncitizen has been deprived notice of the time and place of his removal pro- ceedings. By the Government’s own account, Congress enacted the stop-time rule to prevent noncitizens from exploiting administrative delays to “buy time” during which they accumulate periods of continuous presence.Id., at 37–38 (citing H. R. Rep. No. 104–469, pt. 1, p. 122 (1996)). Requiring the Government to furnish time-and- place information in a notice to appear, however, is en- tirely consistent with that objective because, once a proper notice to appear is served, the stop-time rule is triggered, and a noncitizen would be unable to manipulate or delay removal proceedings to “buy time.” At the end of the day, given the clarity of the plain language, we “apply the statute as it is written.” Burrage, 571 U. S., at 218.
IV
For the foregoing reasons, the judgment of the Court of Appeals for the First Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
KEY QUOTE FROM JUSTICE KENNEDY’S CONCURRING OPINION:
In according Chevron deference to the BIA’s interpreta- tion, some Courts of Appeals engaged in cursory analysis of the questions whether, applying the ordinary tools of statutory construction, Congress’ intent could be dis- cerned, 467 U. S., at 843, n. 9, and whether the BIA’s interpretation was reasonable, id., at 845. In Urbina v.Holder, for example, the court stated, without any further elaboration, that “we agree with the BIA that the relevant statutory provision is ambiguous.” 745 F. 3d, at 740. It then deemed reasonable the BIA’s interpretation of the statute, “for the reasons the BIA gave in that case.” Ibid. This analysis suggests an abdication of the Judiciary’s proper role in interpreting federal statutes.
The type of reflexive deference exhibited in some of these cases is troubling. And when deference is applied to other questions of statutory interpretation, such as an agency’s interpretation of the statutory provisions that concern the scope of its own authority, it is more troubling still. See Arlington v. FCC, 569 U. S. 290, 327 (2013) (ROBERTS, C. J., dissenting) (“We do not leave it to the agency to decide when it is in charge”). Given the con- cerns raised by some Members of this Court, see, e.g., id.,at 312–328; Michigan v. EPA, 576 U. S. ___, ___ (2015) (THOMAS, J., concurring); Gutierrez-Brizuela v. Lynch, 834
Cite as: 585 U. S. ____ (2018) 3
KENNEDY, J., concurring
F. 3d 1142, 1149–1158 (CA10 2016) (Gorsuch, J., concur- ring), it seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevronand how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary. See, e.g.,Arlington, supra, at 312–316 (ROBERTS, C. J., dissenting).
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I filed an Amicus Brief, with the assistance of Eric Citron, Goldstein & Russell, of in behalf of Mr. Pereira.
In invalidates hundreds of thousands of defective Notices to Appear, thus potentially requiring massive “restarts” in an already out of control system.
Even with a more or less hand-picked Supreme Court, immigration reactionaries continue to lose case after case. So, it isn’t “liberal judges.” It’s inane, biased policies and lousy lawyering at the DOJ and DHS which goes back through the Obama and Bush II Administrations. It’s just reached its lowest conceivable level under Sessions. But, I’ll admit that every time I think Sessions can’t sink any lower on the legal and moral scale, he surprises me.
It makes tens of thousands of additional individuals who have now been here for 10 or more years eligible to apply for “Non-LPR Cancellation of Removal” because the “stop time rule” was not properly invoked by the service of the defective NTA in their cases. This could pour tens of thousands of Motions to Reopen and/or Reconsider into an already overwhelmed system.
Virtually every individual from El Salvador, Haiti, and Honduras whose TPS is going to be (bone-headedly) terminated by the Trumpsters will now be able to demand full hearings on Cancellation of Removal in U.S. Immigration Court. Thus, they aren’t going anywhere any time soon.
It illustrates the problems of giving improper “Chevron Deference” to a BIA that no longer functions as an expert tribunal and does not exercise independent judgement. Ever since the “Ashcroft Purge” the BIA has been an “inbred body” specifically structured and staffed to be a “shill” for DHS and the Administration’s enforcement policies. And, under Sessions, the BIA has been completely co-opted by his unethical and highly improper interference in what little was left of its independent decision-making function. “Justice” in today’s Immigration Courts is a total sham!
Chevron, as I have stated many times to my law school class, is a cowardly exercise of “judicial task avoidance” by the Supremes. Congress should eliminate it if the Supremes don’t. Article III Judges should be required to do their Constitutional duties, earn their pay, and decide legal issues de novo, even when that might be controversial, unpopular, or require more critical, analytical thinking than they care to do.
The Pereira debacle is entirely the fault of a totally screwed up and incompetent Executive Immigration function stretching back for nearly two decades. Fixing this problem properly should have been a “no brainer.” The “technology” (which probably could have been developed by a middle schooler sitting in her basement) was there more than a decade ago. But “haste makes waste” corner cutting combined with the assurance that the emasculated and enfeebled BIA would intentionally misread the plain meaning of the statute to screw the respondent and help the DHS produced a totally avoidable administrative nightmare.
“You ain’t seen nothin’ yet.” With White Nationalist xenophobe Sessions demanding that Immigration Judges deny, deny, deny, without hearings if necessary, to achieve their quota of removals without the inconvenience of Due Process and impartiality, cases are going to come rocketing back from the Courts of Appeals by the truckload. The whole system is going to collapse. And don’t anyone let the corrupt and biased Sessions get away with fobbing the blame off on others, as he and the rest of the Trump Regime are wont to do.
Sessions, Trump, Miller, Nielsen, Kelly, Homan and the rest of the scofflaw, White Nationalist, anti-Constitutional crowd might think that the Constitution doesn’t mean what it says. But, foreign nationals in the United States are entitled to fairness and due process. No matter how many corners the Trumpsters cut and how much bias they institutionalize into the already compromised Immigration Courts, they aren’t going to be able to eliminate Due Process.
We need a legitimate, independent, impartial, unbiased, Sessions-free, Due Process focused U.S. Immigration Court. Until that happens, the entire immigration justice system will continue to spiral downward under the immorality and toxic incompetence of Sessions and his cronies.
Reports have been circulating that Justice Anthony Kennedy will retire at the end of the Supreme Court’s current term, perhaps as soon as today. Since Justice Kennedy is considered the “swing” vote among the Court’s four conservative and four liberal Justices, President Trump’s appointment of a replacement will swing control decidedly in favor of the conservatives.
While some have predicted a “Bork like” confirmation battle, that’s not going to happen. As the minority party, the Democrats will certainly have a chance to put their objections to the candidate on the record and in the media. But, the GOP has the votes necessary for confirmation. As in most things in Washington these days, the Democrats have neither influence nor power. That’s what happens when you lose elections, particularly for control of the Senate.
As we’ve seen during the Cabinet confirmation process, President Trump could nominate a ham sandwich for the Supreme Court vacancy and the GOP would vote to confirm. By the time this is over, the Democrats could be wishing for another Justice Neil Gorsuch. The next pick is likely to make Gorsuch look like a liberal. A sobering thought for those counting on the Court to keep Trump in check.
