Department of Homeland Security Commemorates its Fourteenth Year

On March 1, 2017, the Secretary of Homeland Security, John F. Kelly, released a message to Department of Homeland Security (DHS) employees commemorating the fourteenth anniversary of the Department's opening [PDF version]. The DHS was created in the aftermath of the September 11, 2001, terrorist attacks to improve the security of the United States.

The creation of the DHS was one of the most significant events in the history of U.S. immigration law. Prior to the DHS, immigration enforcement and policy was conducted by the Immigration and Naturalization Service (INS), which was a part of the Department of Justice (DOJ). With the creation of the DHS, the functions of the INS were moved to a new department under the leadership of the Secretary of Homeland Security, rather than the Attorney General.

Followers of our website may note that the INS is referenced in many of our articles that deal with administrative and judicial decisions predating the establishment of the DHS. Fortunately for the continuity of the immigration laws, those decisions and guidance carried over when the functions of immigration enforcement and policy were mostly moved to the DHS.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Review of the Oral Arguments Before SCOTUS in Sessions v. Dimaya (Crime of Violence Case)

INTRODUCTION

On January 17, 2017, the Supreme Court of the United States heard oral arguments in Lynch v. Dimaya, 15-1498. The case concerns whether 18 U.S.C. 16(b) is unconstitutionally vague as it is incorporated into the immigration laws at section 101(a)(43)(F) of the Immigration and Nationality Act (INA). Subsequent to those arguments, Attorney General Jeff Sessions replaced former Attorney General Loretta Lynch. Accordingly, the case is now called Sessions v. Dimaya. We will use that name going forward.

Before reading this article, please see the full post on the case that we wrote when the Supreme Court granted the government's cert petition. Additionally, please see the article we wrote about the precedent decision of the United States Court of Appeals for the Ninth Circuit, Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) [PDF version] [see article], which is being appealed. In Dimaya v. Lynch, the Ninth Circuit held that 18 U.S.C. 16(b) was void for vagueness as incorporated into the immigration laws. The Ninth Circuit relied heavily on the Supreme Court decision in Johnson v. United States, 333 U.S. 10 (2015) [PDF version]. The instant case discusses the Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1 (2004) [PDF version], wherein the Supreme Court briefly discussed 18 U.S.C. 16(b) and explained that “burglary” may be the classic crime that would fall under the provision [see article].

In this article, we will examine the oral arguments made by the Government and by the respondent and contemplate what these arguments may mean going forward as the Supreme Court looks to decide Sessions v. Dimaya later this term. Please consult the following link to see the text of the oral arguments [PDF version].

UNDERSTANDING THE KEY STATUTE

18 U.S.C. 16(a) specifically defines a “crime of violence” as an offense that has as an element the use, attempted use, or threated use of physical force against the person or property of another.

18 U.S.C. 16(b) additionally defines the term “crime of violence” as also including:

[a]ny other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. 16 is incorporated into the immigration laws through section 101(a)(43)(F) of the INA, which relies upon it for the definition of aggravated felony crime of violence. The question before the Supreme Court is whether 18 U.S.C. 16(b) — the “residual clause” of 18 U.S.C. 16 — is unconstitutionally vague as incorporated into the immigration laws.

ORAL ARGUMENTS

In cases before the Supreme Court, both sides brief the Justices and then present their arguments. In the following sections, we will examine the arguments by and questions for the government and the respondent before the Court. The government's argument was presented by then-Deputy Solicitor General Edwin S. Kneedler. The respondent was represented by E. Joshua Rosenkranz.

GOVERNMENT'S ORAL ARGUMENT

The Government argued that the Ninth Circuit was wrong in applying Johnson to the incorporation of 18 U.S.C. 16(b) for two reasons:

1. The standard of vagueness in an immigration proceeding is not the same as in a criminal proceeding. Immigration proceedings are administered by the executive branch — rather than the judiciary — and are civil in nature. The Government noted that the Constitution does not require prior notice that conduct may lead to removal.
2. Regardless of the differences between immigration proceedings and criminal proceedings, the application of the criminal vagueness standard of Johnson does not render 18 U.S.C. 16(b) void for vagueness.

The Government established the two central pillars of its argument right away. First, the Government relied heavily on the distinction between civil immigration proceedings and criminal proceedings in support of its position that the standards for vagueness are very different in the civil immigration context than in the criminal context. Alternatively, the Government argued that, because 18 U.S.C. 16(b) was worded differently than the statute scrutinized in Johnson, application of the Johnson vagueness standard to it mandated a different outcome. To this effect, the Government relied heavily on the Supreme Court decision in Leocal.

The Government's position received heavy scrutiny from Justices Ruth Bader Ginsburg, Sonia Sotomayor, and especially Elena Kagan. In the following sections, we will highlight some of the most interesting exchanges, including a very important question from Justice Anthony Kennedy.

Justice Ginsburg noted that in Johnson the Government had taken the position that 18 U.S.C. 16(b) would be vulnerable to reversal because it could be subject to the same vagueness objection as the statute that was at issue in Johnson. The Government countered that it had merely been responding to the arguments that were made by the appellant in Johnson, and that Johnson was, in any event, ultimately decided on narrower grounds. To this effect, the Government argued that 18 U.S.C. 16(b) was distinguishable from the statutory interpretation issue in Johnson. Justices Ginsburg, Sotomayor, and Kagan asked pointed questions that seemed to signify a lack of satisfaction with the Government's position on the distinguishability of 18 U.S.C. 16(b).

The most pointed questioning on the breadth of 18 U.S.C. 16(b) came from Justice Kagan. The Government had taken the position that Leocal made clear that 18 U.S.C. 16(b) “requires a risk of the use of physical force, the — an act of violent crime.” Accordingly, under questioning from Justice Kagan the Government argued that mere possession of a sawed off shotgun would not be covered under 18 U.S.C. 16(b), contrasting simple possession of the weapon with an indicator of the weapon's affirmative use during commission of another crime. The discussion then veered toward whether generic burglary would be covered by 18 U.S.C. 16(b). The Government took the position that burglary does, “by its nature,” entail a risk of the use of physical force, as required by the Supreme Court in Leocal. Accordingly, the Government necessarily argued that the burglary example was distinguishable from the shotgun example, and that the crime of burglary would be covered by 18 U.S.C. 16(b) (depending on the language of the burglary statute in question), while possession of shotgun would not be covered. Justice Kagan seemed cynical of the argument that burglary was distinguishable from the shotgun example, which the Court had found problematic in Johnson.

Under further questioning from Justice Kagan, the Government articulated its position that in order to determine whether a conviction falls under 18 U.S.C. 16(b), one must assess the elements of the conviction and evaluate the risk of the use of physical force against the person or property of another. Justice Kagan asked whether vehicular flight would fall under 18 U.S.C. 16(b). The Government did not offer a general answer, restating its position that an elements-based approach would be needed to determine whether a specific conviction for vehicular flight meets the standard of 18 U.S.C. 16(b).

Justices Kagan and Sotomayor then returned the discussion to the distinction — or lack thereof — between burglary and possession of a shotgun. Justice Sotomayor noted that the actual use of force is not necessary for the commission of a burglary, no more than it is for the crime of possessing a shotgun, but that both could arguably entail an enhanced chance that physical force is used against another during the burglary or while possessing the shotgun. To answer this question, the Government argued that the actual elements of the crime of burglary varies among jurisdictions, and argued that an elements-based approach is required to determine the elements of a specific burglary statute — what “the state legislature was driving at” — to ascertain the risk addressed by the offense.

Justice Kennedy then questioned the Government on its first argument that the statutory vagueness standard in immigration proceedings is different than in Johnson, which was addressing the interpretation of a criminal statute in a criminal proceeding. Justice Kennedy noted that in Jordan v. De George, 341 U.S. 223 (1951) [PDF version], the Supreme Court rejected a constitutional vagueness challenge to a statute regarding crimes of moral turpitude in the immigration context, but nevertheless found that it could review the question. In response, the Government called De George a “drive-by ruling,” noting that the Court had not been briefed on the issue in that case. Indeed, the Government argued, De George did not even address Mahler v. Eby, 264 U.S. 32 (1924) [PDF version], wherein, the Government suggested, the Supreme Court had previously taken the position that a looser standard of vagueness would apply in immigration cases. Finally, the Government noted that the ex post de facto clause does not apply to immigration scenarios, meaning that an individual may be removed for conduct that was not a basis for removal before he or she engaged in such conduct.

RESPONDENT'S ORAL ARGUMENT

The respondent argued that 18 U.S.C. 16(b) was not distinguishable from the residual clause at issue in Johnson to the extent that it could survive a vagueness challenge under the Johnson precedent. Furthermore, as we will see, the respondent argued that the consequences of an aggravated felony conviction are severe enough to trigger judicial scrutiny to determine whether 18 U.S.C. 16(b) as incorporated in section 101(a)(43)(F) of the INA is void for vagueness.

The respondent received questioning from most of the Justices on a variety of issues related to his position. Justice Samuel Alito in particular posed difficult questions about the scope of a ruling in the respondent's favor, and about the applicability of De George to the respondent's arguments.

Justice Kagan noted that the residual clause at question in Johnson had been subject to extensive litigation prior to the Supreme Court finding the statute void for vagueness, and she suggested that 18 U.S.C. 16(b) may be distinguishable in that sense. The respondent argued that circuit courts have split on the proper reading of 18 U.S.C. 16(b) in the immigration context, including in cases with nearly identical elements. Thus, the respondent argued that the judicial experience with the residual clause at issue in Johnson and with 18 U.S.C. 16(b) were similar in terms of ripeness for review.

Justice Ginsburg asked the respondent to offer a position on whether 18 U.S.C. 16(b) is more specific than the residual clause at issue in Johnson. The respondent took the position that it was not distinguishable to the extent that it was not covered by Johnson. The respondent's argument to this effect was premised on the assertion that “in the course of committing an offense” does not entail a temporal limitation. Under this reading, one may conclude that the shotgun example would be covered by 18 U.S.C. 16(b), which is a different reading of the statute than offered by the Government.

Justice Alito than asked the respondent about how a decision in his favor would affect the adjudication of hypothetical crimes involving moral turpitude in the criminal context (e.g., if a criminal offense for a crime of moral turpitude led to a sentence of up to 20 years in prison). The respondent took the position that such a criminal moral turpitude statute would be problematic on vagueness grounds “because you don't have an administrative agency that gives content to the moral turpitude language the way you do … in the immigration context.” Justice Alto called this answer surprising, and noted that in De George, the Supreme Court held that the immigration moral turpitude statute satisfied the applicable vagueness standard in the deportation context. To this effect, Justice Alito asked the respondent why the moral turpitude statute would satisfy vagueness standards in the immigration context but not in the criminal context. The respondent's position was that administrative agencies have given context to the definition of a crime of moral turpitude, and therefore that the definition is well understood, unlike 18 U.S.C. 16(b). However, Justice Alito seemed unsatisfied with that answer, asking whether various crimes were crimes involving moral turpitude, and not eliciting definitive answers from the respondent.

Chief Justice John Roberts noted that the residual clause at issue in Johnson caused confusion in part by the fact that it also relied upon predicate offenses (note that the residual clause in Johnson was a sentence-enhancement statute). However, the respondent did not find that the distinction noted by Chief Justice Roberts merited different treatment of 18 U.S.C. 16(b). The respondent noted in fact that the Supreme Court — despite having a responsibility to save the residual clause at issue in Johnson if possible — struck it down on grounds also applicable to 18 U.S.C. 16(b), rather than on the issue noted by the Chief Justice.

The respondent then took questions from Justice Stephen Breyer about the implications of this being an immigration case rather than a criminal case. First, the respondent argued that the issue at hand in Mahler, which was invoked by the Government, was not relevant to the instant case (he argued it was an issue decided in terms of delegation and predated more recent administrative precedent decisions). Second, the respondent argued that the issue warranted review because, despite being a civil immigration matter rather than a criminal matter, it “implicates liberty with the severest sorts of consequences.”

In response to a question from Justice Kagan, the respondent concurred that he hoped that the Court would essentially repeat its holding from Johnson in the instant case, notwithstanding the potential implications of applying the Johnson precedent to a civil immigration matter.

Justice Alito took the position that the respondent had totally disregarded the distinctions between criminal and civil cases. Justice Alito noted, for example, that other repercussion from civil matters, “such as child custody, loss of a professional license, complete destruction of a business, loss of a home,” may also have “a devastating impact on someone.” The respondent argued that De George set forth the principle that an immigration statute involving deportation should be reviewed because the consequences of deportation implicate liberty interests. Justice Alito disagreed, finding this ruling incorrect. Justice Alito first noted — as had the Government under questioning from Justice Kennedy — that De George was not briefed, and that the argument noted by the respondent was only brought forth in the dissent. Justice Alito observed that the actual decision in De George held that the immigration provision covering crimes of moral turpitude — while reviewable for vagueness — was not unconstitutionally vague. Justice Alito posited that the respondent's position would necessitate the same standard for vagueness in a case involving a criminal moral turpitude statute that carried potentially severe criminal penalties, a position which he described as “very difficult to defend.”

In response to Justice Alito, the respondent noted that 18 U.S.C. 16(b) is in fact a criminal statute, one that is merely being incorporated into a civil matter by the INA. Justice Alito responded by asking if the respondent would take the same position if the immigration statute did not rely on a definition from a criminal statute. The respondent appealed to the Supreme Court decision in A.B. Small Company v. American Sugar Refining Company, 267 U.S. 233 (1925) [PDF version], wherein the Court struck down the civil applications of a criminal statute that it found to be unconstitutional.

Justice Ginsburg asked the respondent for a position on Leocal, wherein the Supreme Court had held that burglary was the “classic crime” for fitting within 18 U.S.C. 16(b). This question was notable in the sense that Dimaya involves a California burglary conviction that did not fit under 18 U.S.C. 16(a) . The conviction was under the same burglary definition that was at issue in Descamps v. United States, 133 S.Ct. 2276 (2013) [PDF version] [see article]. The approach to statutory interpretation set forth in Descamps was the reason why the respondent in Dimaya was considered to have committed an aggravated felony (in the immigration context) under 18 U.S.C. 16(b) rather than (a). The respondent argued that burglary is not a clear-cut example of a crime that may involve a substantial risk of force against the person or property of another, and that in any case the California statute at issue was found to not constitute generic burglary.

CONCLUSION

The Supreme Court's decision in Sessions v. Dimaya will either clarify the application of 18 U.S.C. 16(b) in the immigration context or find that its incorporation into the INA is void for vagueness.

Although oral arguments may hold clues as to which direction the Court is leaning, they do not guarantee any specific outcome. Dimaya is complicated by the fact that there is currently an even-number of Justices on the Court. The Court may have the option — in the event that it is headed for a 4-4 split — to reschedule the oral arguments after a ninth Justice is sworn in. Please see our full post on the nominee, Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit, to learn more [see blog].

Although the situations and issues are not identical, the Supreme Court's alignment in Johnson may provide clues as to how it will rule in Dimaya. Of the current Justices, five — Roberts, Ginsburg, Breyer, Kagan, and Sotomayor — found the residual clause at issue in Johnson to be unconstitutionally vague. Three Justices — Kennedy, Clarence Thomas, and Samuel Alito — did not find that the statute was unconstitutionally vague (although note that Justices Kennedy and Thomas concurred in the judgment on other grounds).

We will update the site with more information on this important case when the Court either announces a decision or opts for rehearing after Judge Gorsuch is confirmed.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

EOIR Announces Investiture of 12 New Immigration Judges

On February 6, 2017, the Executive Office of Immigration Review (EOIR) announced the investiture of 12 new immigration judges [link]. Chief Immigration Judge MaryBeth Keller presided over the investiture ceremony on February 3, 2017. The new immigration judges were appointed by former Attorney General Loretta Lynch. Chief Immigration Judge Keller noted that with the investiture of the 12 new immigration judges, the “EOIR has for the first time in its history exceeded 300.”

The twelve new immigration judges will sit on eight immigration courts. The San Francisco Immigration Court will see four new immigration judges while the Houston immigration court will see two new immigration judges. The following is a list of the new immigration judges along with the immigration courts on which they will serve:

• Victoria L. Argumedo (San Francisco Immigration Court);
• Steven D. Caley (Aurora Immigration Court);
• Ila C. Deiss (San Francisco Immigration Court);
• Delia I. Gonzalez (Harlingen Immigration Court);
• Deborah K. Goodwin (Miami Immigration Court);
• Stephanie E. Gorman (Houston Immigration Court);
• Richard A. Jamadar (Houston Immigration Court);
• Julie Nelson (San Francisco Immigration Court);
• Emmett D. Soper (Arlington Immigration Court);
• Jem C. Sponzo (New York City Immigration Court);
• Arwen Ann Swink (San Francisco Court); and
• Veronica S. Villegas (Los Angeles Immigration Court).

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

President Trump on Immigration in Speech to Congress

On February 28, 2017, President Donald J. Trump gave a speech to a joint session of the United States Congress. Although the speech was not technically a State of the Union Address, it had all of the trappings of one [PDF version to remarks].[1] Each President going back to Ronald Reagan has delivered a pseudo-State of the Union Address in his first year in office.

Thus far, President Trump has deservedly received generally good reviews for his address. In addition to having good optics, the President laid out an optimistic vision for where he sees the country going in the first few months of his presidency. The President set forth an eclectic mix of policies that represented traditional conservatism on some issues and more centrist or even liberal positions on others.

For the purposes of this post, I will focus on the sections of President Trump's address that dealt with immigration. I will review what the President said and offer my analysis on all of the key portions of his remarks. For an interesting comparison, please see the blog post I wrote during the campaign about President Trump's major campaign speech on the issue [see blog].

• Purported Benefits of New Policies
• Security
• Countering the Terrorism Threat
• Foreign Policy
• Immigration Reform
• Victims of Crimes
• Conclusion

PURPORTED BENEFITS OF NEW POLICIES

In his first reference to immigration, President Trump stated that his Administration “has answered the pleas of the American people for immigration enforcement and security.” Interestingly, he described what his Administration has been doing as “finally enforcing the immigration laws…” To his point, President Trump's Executive Orders on border security and interior enforcement have focused on the enforcement of already-existing immigration statutes, rather than the creation of novel policies. Please see our article to the two Memoranda authored by the Secretary of Homeland Security, John F. Kelly, on the implementation of President Trump's Executive Orders [see article].

President Trump insisted that his policies will “raise wages, help the unemployed, save billions of dollars, and make our communities safer for everyone.” To this effect, he stated that Americans cannot succeed “in an environment of lawless chaos.” Hyperbole aside, the President makes some string points and some questionable ones. The President's focus on wages and unemployment needs to be more specific. Many types of illegal immigration hurt American workers, but at the same time, there are examples of cases where America benefits from the labor of people here illegally in such a manner that should prompt us to consider new categories of temporary work visas. To the latter effect, please see my blog on dairy farmers who are working in the United States illegally [see blog]. Fortunately, as we shall see, the President returns to this issue later in his address.

SECURITY

President Trump touted his plans to construct a “great great wall” along the southern border. Readers of my blog will be well aware that I have expressed skepticism about President Trump's various wall proposals throughout the past year and a half. Now that he is President, it will be incumbent on him to take the recommendations of the Department of Homeland Security (DHS) and work with Congress to get funding for a wall — or other reasonable border barriers — that may buttress security on the U.S.-Mexico border. Provided that the President is ready to listen to the talented people who he has appointed to run DHS, I am optimistic that they may be able to come up with an idea for border fortifications that is reasonable, beneficial to U.S. security, and something that Congress would agree to provide funding for.

President Trump argued that his policies were resulting in the removal of “gang members, drug dealers, and criminals that threaten our communities and pray on our citizens.” He then posed the following question to members of Congress who disagree with his new enforcement policies: “what would you say to the American family that loses their jobs, their income, or a loved one, because America refused to uphold its laws and defend its borders?” To this effect, the President makes a strong argument for his immigration policies. To be sure, we have competing concerns. America should be welcoming to immigrants and treat those who are here — legally or illegally — fairly and humanely. I noted in my blog when President Trump failed to treat certain permanent residents and persons with valid nonimmigrant visas fairly [see blog]. However, the opposition to President Trump often airs too far on the opposite end of the spectrum, seeming to oppose the enforcement of our immigration laws or the sanctity of our borders entirely. For example, see some of my critiques of Hillary Clinton's immigration proposals during the campaign [see blog]. In his speech, President Trump takes steps in a positive direction of balancing the two prerogatives that I noted.

COUNTERING THE TERRORISM THREAT

President Trump then addressed policies to mitigate the terror threat we face from those who seek to use our immigration system to do us harm. He noted that “the vast majority of individuals convicted for terrorism-related offenses since 9/11 came here from outside the country.” While the number may be small in total, Senator Marco Rubio correctly noted during the Republican primaries that it only takes one apple out of 10,000 for a catastrophe” [see blog].

Referencing the European refugee experience, President Trump stated that “[i]t is not compassionate, but reckless, to allow uncontrolled entry from places where proper vetting cannot occur” [see blog]. On this point, I unequivocally agree. In endorsing the majority of President Trump's soon-to-be superseded Executive Order on protecting the United States from the threat of terrorism, I strongly backed his call for enhanced vetting of applicants from terror-prone countries. To this effect, the President stated that his “Administration has been working on improved vetting procedures, and we will shortly take new steps to keep our nation safe — and to keep out those who would do us harm.” It has been reported that President Trump will issue a narrower version of his controversial Executive Order that notably suspended immigration from seven countries under section 212(f) of the Immigration and Nationality Act (INA) [see article]. This is likely that the new Executive Order is what President Trump is referring to here. I am hopeful that the DHS will be able to develop new vetting procedures to achieve the goals stated by President Trump in his address.

FOREIGN POLICY

Although not directly related to immigration, President Trump stated that he has “directed the Department of Defense to develop a plan to demolish and destroy ISIS — a network of lawless savages that have slaughtered Muslims and Christians, and men, women, and children of all faiths and beliefs.” To be sure, protecting the United States at home requires dealing with threats abroad. This was one of the central lessons gleaned by the Bush Administration in the aftermath of 9/11. Secondly, President Trump's description of ISIS as “a network of lawless savages” is striking, and a stark improvement from much of the rhetoric regarding Islamist terror of the previous eight years. However, with the Department of Defense still working on new strategies to present to the President, the jury is still out on the effectiveness of any new initiatives.

Secondly, President Trump noted that he has imposed new sanctions on entities and individuals in Iran related to its ballistic missile program “and reaffirmed our unbreakable alliance with the State of Israel.” Dealing with the Iran threat and working closely with Israel are both central to the security of the United States from terrorism. Although there are still many questions regarding President Trump's policies on both issues, his administration has taken significant steps in the right direction on both of these issues in its first month.

IMMIGRATION REFORM

On this point, President Trump offered his most promising immigration proposal, but also some reasons for concern.

First, he described the current immigration system as “outdated,” and alleged that it both depresses wages for poor American workers and puts pressure on tax payers. As I noted earlier, the specific negative effects of illegal immigration with regard to the economy depend on the specific issue, although all illegal immigration has a negative effect on the system of immigration laws.

President Trump then cited to the merit-based immigration systems of places such as Canada and Australia. He stated that such a system “will save countless dollars, raise workers' wages, and help struggling families — including immigrant families — enter the middle class.” On this point, I applaud the President. I have argued extensively for moving toward a more merit-based approach. If President Trump means to shift the focus of our immigration system from chain migration and low-skilled immigration to attracting high-skilled workers, that is a proposal that everyone should be able to get behind. Furthermore, his focus on attracting people who will be “self-sufficient” and not at risk of being inadmissible on public charge grounds is a worthy one. While I hope to see President Trump examine specific areas where low-skilled workers can provide a strong benefit to the U.S. economy as well, to hear a President address one of the key points of any future immigration reform in such a clear way in a national address was very encouraging.

Next, President Trump stated that he believes that “real and positive immigration reform is possible, as long as we focus on the following goals: to improve jobs and wages for Americans, to strengthen our nation's security, and to restore respect for our laws.” He next stated that he believes that “Republicans and Democrats can work together to achieve an outcome that has eluded our country for decades.” President Trump makes strong points here, but also raises some reasons for concern. On the encouraging side, his three principles for immigration reform are worthy ones. However, I have taken the position that we must secure the border, show demonstrable results in enforcement against visa overstays, and reform employment immigration before we should address legalization for those who are here illegally [see blog]. Although President Trump did not discuss legalization in his speech, he seemed open to the idea in comments earlier in the day to CNN [link].[2] Furthermore, any “deal” with the Democrats at this point in time would likely have to include legalization of some sort.

Accordingly, I have three primary concerns and questions regarding President Trump's sudden interest in immigration reform.

Firstly, the issue seems premature. The DHS is still in the process of promulgating regulations and guidance to enforcing the directives in President Trump's border security and immigration enforcement executive orders. It is my position that it makes sense to first assess the effectiveness of the new policies before negotiating a significant immigration reform package. By seeing what works and what does not work, the President and Congressional Republicans would have a clear idea of the sorts of pro-enforcement compromises that they need to seek from Democrats in negotiations.

Secondly, the President and the Republican Congress already has pressing issues on tap. For example, the Administration and Congress are currently determining what direction to take on repealing and replacing the Affordable Care Act and on tax reform. Additionally, the President is interested in having a new infrastructure plan passed expeditiously. The first two issues are especially pressing because the President will have very limited prospects for success in the event that the fortunes of Republicans in Congress deteriorate after the 2018 midterm elections. These important issues seem like they should be higher priorities than making significant reforms to immigration at this time.

Finally, what does the President see as the parameters of negotiations? If the President means to exchange some form of legal protection for DACA recipients in exchange for pro-enforcement and pro-employment reforms, that could be the beginning of very positive immigration reform. However, if the President means to make more significant concessions on legalization and/or amnesty, he would seem to be destined to repeat the well-intentioned mistakes of President Ronald Reagan in his effort to reform our immigration system. Caution is warranted, as President Trump's positions on immigration policy have shifted dramatically over recent years [see blog].

Although the President has made important changes to immigration enforcement and has good ideas regarding the changes we need to make to our immigration system, I would encourage him to slow down. I hope to see President Trump work to tackle immigration in a significant way, but the issue does not seem to be ripe so early in his Administration.

VICTIMS OF CRIMES

Finally, the President addressed his directive for the DHS to create an office titled “Victims Of Immigration Crime Engagement” (VOICE) [see blog]. The purpose of VOICE is to track and report crimes committed by aliens in the United States illegally. To drive home his message, President Trump told the stories of several guests he had invited to his address whose family members were murdered by aliens in the United States illegally.

While a crime is a crime regardless of who commits it, there is merit to President Trump's point that crimes committed by those who are here illegally are presumably preventable by the proper enforcement of the immigration laws. While I do not think criminal activity is the foremost problem with illegal immigration, it was certainly a major focus of the President's campaign, and we can only hope he improves on previous efforts to remove dangerous aliens from the United States in an expeditious manner.

CONCLUSION

While I did not agree with every single policy offered by President Trump in his address, it was highly encouraging in terms of tone and delivery. As a supporter, I hope that this speech both buttresses the President's approval and proves to be the start of implementing strong policies going forward. With respect to immigration, the President appears to be charting a far better course than he at times suggested in the campaign. However, his policies will bear close watching, as there are still many questions that he and his Administration have not yet answered.

As always, we will update the site and the opinion blogs with more news about the Trump Administration's immigration policies going forward.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. The Oregonian, “Full transcript of Donald Trump's first speech to Congress,” Oregonlive.com, (Feb. 28, 2017)
2. Tapper, Jake, Wolf Blitzer, and Tal Kopan, “Trump envisions bill allowing many immigrants to stay in US,” cnn.com, (Feb. 28, 2017)

Lawyer website: http://myattorneyusa.com

USCIS Reissuing Receipt Notices to Ceratin EAD Renewal Applicants Who Revived Automatic Extensions

USCIS ANNOUNCES AUTOMATIC EXTENSIONS FOR EAD RENEWAL APPLICANTS IN CERTAIN CATEGORIES

On February 1, 2017, the United States Citizenship and Immigration Services (USCIS) announced that on January 17, 2017, it automatically extended certain expiring Employment Authorization Documents (EADs) for up to 180 days for certain renewal applicants [link]. In order to be a beneficiary of the automatic extension, the individual must have been seeking to renew an EAD in one of the following [see article] EAD categories.

Provided that the individual was seeking renewal in one of the above categories:

• He or she must have properly filed for a renewal EAD before his or her current EAD expired; and
• The category on the current EAD must match the “Class Requested” on the current Notice of Action.

The USCIS explains that for applicants for Temporary Protected Status (TPS) [see category], both the EAD and the Notice of Action must contain either the (a)(12) or (c)(19) categories, but the categories do not need to match.

The USCIS stated that the reason for the automatic extensions was “to help prevent gaps in employment authorization and documentation.” The extension applies to Form I-765 renewal applications that were still pending on January 17, 2017, and to Form I-765 applications that were filed on or after January 17, 2017.

USCIS ANNOUNCES THAT IT WILL REISSUE RECEIPT NOTICES

On February 24, 2017, the USCIS announced that starting on February 16, 2017, it began reissuing Form I-797, Receipt Notices, to individuals who had applied to renew their EADs between July 21, 2016, and January 16, 2017, and whose applications remain pending in all of the categories listed in the previous section, except for (a)(12) and (c)(19) [link]. The USCIS is sending the new receipt notices because the receipt notices that the USCIS had sent out did not contain the applicant's EAD eligibility category. The new receipt notices will contain the following information:

• The applicant's EAD eligibility category;
• The receipt date (the date on which the USCIS received the renewal application);
• The notice date (the date on which the USCIS reissued the receipt notice); and
• New information about the 180-day EAD extension.

The new receipt notices will help applicants demonstrate to their employers that they are employment authorized. The USCIS explains that applicants may present the reissued receipt notice with their expired EAD to their employer as a List A document for the Form I-9, Employment Eligibility Verification.

Applicants with a TPS-related EAD who filed their renewal applications before January 17, 2017, will not receive a reissued receipt notice. This is because these applicants already received 6-month extensions through the Federal Register notice that extended their country's TPS designation.

CONCLUSION

The USCIS decided to offer short automatic extensions to expired EADs in certain categories to prevent gaps from forming while renewal applications are pending. The USCIS's reissuance of receipt notices to most of these applicants will provide them with evidence of continued employment authorization. Applicants with questions about their specific cases should consult with an experienced immigration attorney.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Attorney General Sessions Reverses Obama Admin Policy on Private Prisons

On February 21, 2017, the Attorney General of the United States, Jeff Sessions, issued a Memorandum titled “Recission of Memorandum on Use of Private Prisons” [PDF version].[1] The Sessions Memorandum rescinds an August 18, 2016, Memorandum authored by the then-Deputy Attorney General of the United States, Sally Q. Yates titled “Reducing our Use of Private Prisons” [PDF version].

The Yates Memorandum had set forth a policy of “reducing-and ultimately ending-our use of privately owned prisons.” The Yates Memorandum directed the Federal Bureau of Prisons to either not renew expired contracts with private prison contractors or to “substantially reduce its scope in a matter consistent with law and the overall decline of the Bureau's inmate population.”

In his new Memorandum, Attorney General Sessions takes the position that the policy set forth in the Yates Memorandum “changed long-standing policy and practice, and impaired the Bureau's ability to meet the future needs of the federal correctional system.” Accordingly, Attorney General Sessions directed the Bureau of Prisons “to return to its previous approach.”

The purpose of the Attorney General's reversal of the Yates Memorandum is to give the Federal Bureau of Prisons more flexibility in handling large numbers of detainees. However, while the Sessions Memorandum represents a significant policy shift from the Yates Memorandum, it is important to note that the Yates Memorandum was issued just six months ago, and that the actual effects of its recission in practice may be limited.

In the immigration context, the Sessions Memorandum may work in conjunction with the recently issued Memorandums by the Secretary of Homeland Security, John Kelly, that call for enforcing the mandatory detention provisions of the Immigration and Nationality Act (INA) more strictly [see article].

We will update the site if and when more information becomes available about how the new Department of Justice policy on private prisons will interact with the new immigration policies of the new administration.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. PDF courtesy of Politico at http://www.politico.com/f/?id=0000015a-6d3f-d49b-a77a-7fbf234a0001

Lawyer website: http://myattorneyusa.com

Harris County (Containing Houston, Texas) Opts Out of Section 287(g) Agreement

Under section 287(g) of the Immigration and Nationality Act (INA), the Department of Homeland Security (DHS) may enter into agreements with states or political subdivisions thereof to have state or local officers cooperate with the DHS in matters of immigration enforcement. President Donald Trump issued two Executive Orders on January 25, 2017, providing for the expansion of section 287(g) agreements [see article]. On February 20, 2017, policy guidance to this effect was announced in two memorandums issued by the Secretary of Homeland Security, John F. Kelly [see article]. The use of section 287(g) agreements had waned during the Obama Administration.

On February 22, 2017, just two days after Secretary Kelly issued the two DHS memorandums providing for the expansion of the use of section 287(g) agreements, Aaron Barker of Clich2Houston reported that Harris County Sheriff Ed Gonzalez opted his department out of the section 287(g) program [link].[1] Harris County, located in Texas, is notable for encompassing Houston.

Although the timing seems related, the article quotes Sheriff Gonzalez as attributing his decision to cost concerns. He noted that his department was spending $675,000 to staff and run the program, and that he felt the money could be better allocated elsewhere. Furthermore, the Sheriff noted that only two other counties in Texas — Jackson and Lubbock — are currently engaged in section 287(g) agreements. Nevertheless, the Sheriff stated that Harris County will continue to provide the Immigration and Customs Enforcement (ICE) with access to all relevant databases, and that his department will comply with any requests made by the ICE.

Despite the new guidance issued by Secretary Kelly, it remains unclear how many jurisdictions will opt to enter into section 287(g) agreements with the DHS. Additionally, it remains to be seen what form new agreements will take and the extent to which state and local authorities will be given latitude to participate in immigration enforcement activities. For the time being at least, Harris County will no longer be a participant in a section 287(g) agreement. However, the Sheriff made clear that Harris County will not not otherwise limit its cooperation with the ICE.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Barker, Aaron, “Harris County Sheriff opts out of voluntary ICE program,” click2houston.com, (Feb. 22, 2017)

Lawyer website: http://myattorneyusa.com

President Trump Nominates R. Alexander Acosta for Secretary of Labor

On February 16, 2017, President Donald Trump nominated R. Alexander Acosta for the position of Secretary of Labor [link]. The announcement came after his original nominee, Andrew Puzder, withdrew his name from consideration for Secretary of Labor. Acosta is an attorney who previously served on the National Labor Relations Board under President George W. Bush. He subsequently served as the United States Attorney for the Southern District of Florida. The Secretary of Labor is a significant position in the employment immigration context. We look forward to posting a full profile of Acosta in the near future.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Overview of Scotus Nominee Neil Gorsuch's Background and Record

INTRODUCTION

On January 31, 2017, President Donald Trump nominated Judge Neil M. Gorsuch of the United States Court of Appeals for the Tenth Circuit to the United States Supreme Court [see blog]. Judge Gorsuch was nominated to fill the seat that has been vacant since the death of former Justice Antonin Scalia on February 13, 2016 [see blog on Justice Scala's career]. In this article, I will offer an overview of Judge Gorsuch's career and known positions, with an emphasis on issues that relate to the administration of the immigration laws. In conclusion, I will explain why Judge Gorsuch is an exceptional pick for the vacant Supreme Court seat and why the Senate should move expeditiously to confirm him.

BACKGROUND

Judge Gorsuch recently submitted his responses to a questionnaire issued by the Senate Judiciary Committee [PDF version]. This committee will vote whether to refer the nomination to the full Senate following a hearing at which Judge Gorsuch will appear. We will rely on the questionnaire and other sources to examine Judge Gorsuch's background in brief.

Judge Gorsuch was born on August 29, 1967. At 49 years of age, he is the youngest individual nominated to the Supreme Court since now-Justice Clarence Thomas was nominated at 43 years of age in 1991.

Judge Gorsuch obtained his undergraduate degree from Columbia University in 1988. He procured his law degree from Harvard Law School in 1991. If confirmed, Judge Gorsuch will be the sixth Justice on the Court to have graduated from Harvard Law School. Judge Gorsuch subsequently studied at Oxford University, receiving a Doctor of Philosophy in Law degree in 2004.

After completing Harvard Law School, Judge Gorsuch clerked for Judge David B. Sentelle of the United States Court of Appeals for the D.C. Circuit from 1991-1992. Judge Gorsuch then clerked for Justice Byron White and Justice Anthony Kennedy of the United States Supreme Court from 1993-1994. If confirmed, Gorsuch will be the only Justice to have clerked for one of his colleagues (Justice Kennedy).

Subsequent to his clerkships, Judge Gorsuch worked in private practice from 1998-2005. From 2005-2006, he worked in the United States Department of Justice (DOJ) as a Principal Deputy Associate Attorney General. In 2006, President George W. Bush nominated Gorsuch to replace Judge David M. Ebel on the United States Court of Appeals for the Tenth Circuit. Gorsuch was confirmed by the United States Senate by voice vote with no registered opposition.[1] Judge Gorsuch has served on the Tenth Circuit since he was confirmed in 2006.

In an interesting side-note, Judge Gorsuch's mother — Anne Gorsuch Buford — served as the Administrator of the Environmental Protection Agency for two years under President Ronald Reagan.

INTERESTING WRITINGS

Before examining Judge Gorsuch's record on the bench, it is work noting two pieces of writing that he completed prior to being confirmed to serve on the Tenth Circuit.

The subject of Judge Gorsuch's research at Oxford University was assisted suicide. After completing his dissertation, Judge Gorsuch published a book titled The Future of Assisted Suicide and Euthanasia (Princeton University Press 2006). In the book, he examined assisted suicide in great detail and assessed the moral and legal arguments for and against it. The issues touched on in this book are outside the scope of what I will focus on in this post, but it is a noteworthy book that is likely to come up in Judge Gorsuch's confirmation hearings. In the book, he argued against assisted suicide, concluding, “All human beings are intrinsically valuable, and the intentional taking of human life by living persons is wrong.”[2]

In an article more relevant to the scope of what we will be examining, Gorsuch penned an article for the conservative National Review in 2005 — prior to taking the bench — titled Liberals'N'Lawsuits.[3] In the article, Gorsuch opined that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than on elected leaders and the ballot box, as the primary means of effecting their social agenda…” Gorsuch contrasted this with relying on the judiciary only in “extraordinary” cases. He argued that such reliance by the left on the judiciary to advance policy objectives “is bad for the country and bad for the judiciary.” Part of the problem, he noted, was that once judges rule that a policy is unconstitutional, one side wins and the other side loses, which robs society “of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.” Furthermore, Gorsuch noted that in his opinion relying on the judiciary to advance policy objectives leads to the politicization of the judiciary. In conclusion, he observed that, during the New Deal, liberals recognized that the “elected branches are generally the appropriate engines of social reform,” and he praised Democratic-appointed judges of that era for arguing for “judicial restraint and deference to the right of Congress to experiment with economic and social policy.”

In an op-ed published recently in the New York Daily News, noted lawyer and legal scholar Ilya Somin expressed concerns with Gorsuch's National Review article.[4] Somin praised many aspects of Judge Gorsuch's record on the bench. However, referring to the opinions voiced in the article, Somin criticized Gorsuch's praise for the Democratic-appointed judges who, during the New Deal period, employed “judicial restraint and deference to the right of Congress to experiment with economic and social policy.” As Somin notes, “Liberal jurists of that period advocated near-total abdication of judicial enforcement of limits on federal power.” Somin acknowledged that it is possible that Judge Gorsuch “did not intend to embrace the full implications” of his statements (including those advocating relying on courts only in “extraordinary” circumstances). However, Somin argued that, in light of threats that Somin sees with President Trump's positions on a variety of issues, Judge Gorsuch's stated position should be taken “both seriously and literally,” even granting his strong record on the Tenth Circuit.

I share some of Somin's concerns with Judge Gorsuch's article in the National Review, and I believe it is a worthy topic for the confirmation hearings. However, it is important to note that the article was written to concur with an argument that liberals should look for policy solutions to policy debates rather than to the judiciary, thus suggesting that the matters addressed — in Gorsuch's opinion — presented pure policy questions rather than legal issues appropriate for judicial review. However, he did indeed go beyond that in seeming to advocate excessive judicial deference to the political branches. Fortunately, as we shall examine, Judge Gorsuch's record on the bench and his general approach to the law suggest that he is more willing than he suggested in that article to exercise judicial review where it is warranted.

JUDGE GORSUCH'S LEGAL PHILOSOPHY

Judge Gorsuch has often been compared to Justice Antonin Scalia in his legal philosophy. He is known as being a textualist, meaning that he seeks to analyze statutes by analyzing the plain meaning of the text, to the exclusion of things such as legislative history and intent. We will see these principles at play in a small selection of Judge Gorsuch's written decisions.

Judge Gorsuch wrote a law article upon the death of Justice Scalia [PDF version], in which the stated that Justice Scalia had reminded judges “[t]hat judges should … strive … to apply the law as it is, focusing backward, not forward, and looking to the text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be-not to decide cases based on their own moral convictions or the policy consequences that they believe might serve society best.”[5] Judge Gorsuch disagreed with criticisms of Justice Scalia's legal philosophy to the effect that he had focused too much on process and not enough on results. Judge Gorsuch described himself as “an adherent to the view that outcomes (ends) do not justify methods (means).[6] Judge Gorsuch further described judicial power as “[n]ot a forward-looking but backward-looking authority.” By this, he explained, he meant that judicial power was not for “making new rules of general applicability, but a means for resolving disputes about what existing law is and how it applies to discrete cases and controversies.”[7]

Although it is never a given how an individual will rule once he or she is on the Supreme Court, Judge Gorsuch's principles of legal interpretation bear strong similarities to those of Justice Scalia, although they may differ on several key issues that we will examine. On the current court, Judge Gorsuch's textualist approach bears similarities on the surface to the approach of Justice Clarence Thomas.

JUDGE GORSUCH ON THREE AREAS RELATING TO IMMIGRATION

Federal judges handle cases from all areas of law, and the vast majority of issues do not implicate the immigration laws. The three areas through which federal judges have the most significant effect on immigration law by their rulings are criminal appeals, immigration appeals, and administrative law decisions. In the following sections, we will examine a few of Judge Gorsuch's opinions in these areas and look for clues as to how he may rule on the Supreme Court.

However, it is important to note that, as a circuit court judge, Judge Gorsuch has been bound by Supreme Court precedent. That means if the Supreme Court has previously spoken to a legal issue that is before the Tenth Circuit, the Tenth Circuit is required to follow the Supreme Court precedent. Conversely, the Supreme Court may reconsider any prior precedent and revise or overrule it. Thus, as a justice of the Supreme Court, Gorsuch would have significantly more latitude.

The question faced by a Supreme Court Justice in general and in any given case is ultimately the degree of his or her acceptance of stare decisis, that is, determining cases in accord with precedent. It is hard to say at this time how Judge Gorsuch would balance the interest in stare decisis in deciding a case when he believes a prior decision — or line of decisions — was wrong. This is one area where the views of two of the Supreme Court's most well-known textualists — Justices Scalia and Thomas — differed. With regard to stare decisis. Justice Scalia was generally more deferential to the principle of stare decisis than Justice Thomas.

CRIMINAL LAW

Eric Citron of Scotusblog described Judge Gorsuch as believing that “criminal laws should be clear and interpreted in favor of defendants even if it hurts government prosecutions (like Scalia).”[8] In the immigration context, Supreme Court precedent on how to interpret and apply criminal statutes has a significant effect on aliens with criminal convictions. Please see our articles on Descamps v. United States, 133 S. Ct. 2276 (2013) [see article] and Mathis v. United States, 579 U.S. __ [see article] for two examples of cases where the Supreme Court created precedent for reading federal sentencing enhancement statutes and criminal statutes in a manner that was generally favorable to aliens with criminal convictions.

One of Judge Gorsuch's most notable pieces of writing from the bench came in United States v. Games-Perez, 667 F.3d 1136 (10th Cir. 2012) [PDF version].

The question regarded the requirements for a conviction under 18 U.S.C. 922(g)(1) and 924(a)(2). 18 U.S.C. 922(g)(1) makes it unlawful for an individual “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” to “ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. 924(a)(2) states that “[w]hoever knowingly violates subsection … (g) … of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.”

A three-judge panel of the Tenth Circuit (which included Judge Gorsuch), had found that the government was not required to establish that an individual knew that he or she had been convicted of a crime punishable by imprisonment for a term exceeding one year in order to secure a conviction under the relevant provisions. Judge Gorsuch concurred in the judgment because he felt bound by precedent, but he expressed his issues with the Tenth Circuit precedent and urged reconsideration.

The appellant made an en banc request asking for a hearing from the entire Tenth Circuit. The Tenth Circuit denied rehearing en banc 6-4. Judge Gorsuch wrote the opinion for the 4 judges who dissented from denial of rehearing en banc. Interestingly, Judge Gorsuch had been on the 3-judge panel that decided the case initially, and concurred in judgment because he felt bound by precedent, but expressed his issues with the Tenth Circuit precedent (and urged reconsideration) in his concurring opinion.

In his dissent from denial of rehearing en banc, Judge Gorsuch argued that 18 U.S.C. 924(a)(2) requires a showing of “knowingly violat[ing] [18 U.S.C.] 922(g), a statute that in turn prohibits (1) a convicted felon (2) from possessing a firearm (3) in interstate commerce.” He took issue with the Tenth Circuit's finding that the government was only required to establish that the appellant had knowingly possessed a firearm and not that he had known that he was a convicted felon as defined in 18 U.S.C. 922(g). Wryly, Judge Gorsuch stated that the Tenth Circuit precedent the Court had relied on interpreted “Congress's mens rea requirement as leapfrogging over the first statutorily specified element and touching down at the second listed element — def[ying] grammatical gravity and linguistic logic.” Judge Gorsuch cited to the Supreme Court decision in Flores-Figueroa v. United States, 556, U.S. 646, 650 (2009) [PDF version], stating that “when a criminal statute introduces the elements of a crime with the word 'knowingly,' that mens rea requirement must be applied 'to all the subsequently listed [substantive] elements of the crime'” (emphasis and alliteration added by Judge Gorsuch). Judge Gorsuch also criticized both the Government's and the Tenth Circuit's reliance on legislative history, stating that “[t]he problem with all this is that hidden intentions never trump expressed ones.”

Judge Gorsuch's concurrence is highly interesting and worth reading in full. It provides a window into how he reads criminal statutes, and it offers evidence that he may often do so in a way that favors criminal defendants.

In a side-note, we recently posted an article about Voisine v. United States, 579 U.S. (2016) [see article], which addressed the related section 922(g)(9) (statute that prohibits firearm ownership for a crime of domestic violence).

JUDGE GORSUCH ON IMMIGRATION AND ADMINISTRATIVE LAW

In 2015 — well before we knew that Judge Gorsuch would be nominated to the Supreme Court — we wrote a comprehensive article on a decision penned by Judge Gorsuch, De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) [see article]. On January 23, 2017, I posted a follow-up blog on Judge Gorsuch's decision on a similar issue in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) [see blog].

We have already covered both of these decisions in great detail on this site, and I encourage you read our full articles for detailed analysis. In this section, I will address the decisions in brief while providing commentary on a passage Judge Gorsuch wrote about De Niz Robles in the law article he wrote after the death of Justice Scalia.

Both cases addressed whether the Board of Immigration Appeals (BIA) could apply its precedent decision in the Matter of Briones, 24 I&N Dec. 355 (BIA 2007) [PDF version], retroactively to a case in which the Tenth Circuit had reached a different conclusion prior to the BIA decision.

A key issue in both of these cases is that of Chevron deference. Under the Supreme Court decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 847 (1984) [PDF version], courts are generally required to defer to an administrative agency's reading of a statute where the statute is ambiguous and the agency's reading of the statute is reasonable. The Supreme Court decision in National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005) [PDF version] extended deference to administrative agencies in the face of contrary judicial precedent, provided that the statute in question is ambiguous.

In both cases, Judge Gorsuch followed Chevron and Brand X in deferring to the Board's decision in the Matter of Briones, but he found that neither allowed the Board to apply Briones retroactively when there was contrary Tenth Circuit precedent. In his concurring opinion in Gutierrez-Brizuela, Judge Gorsuch expressed his qualms with both Chevron and Brand X — and the threat he saw in their vesting too much power in the Executive branch — in great detail. Both decisions are worth reading in full — along with our articles — as they are instructive about administrative law issues and provide a window into Judge Gorsuch's thinking on one of the most important issues that will come before the Supreme Court.

In Judge Gorsuch's article written upon the death of Justice Scalia, he described the De Niz Robles case as follows: “an executive agency acting a faux-judicial proceeding and exercising delegated legislative authority purported to overrule an existing judicial declaration about the meaning of existing law and apply its new legislative rule retroactively to already completed conduct. Just describing what happened here might be enough to make James Madison's head spin.”[9] Judge Gorsuch laid out the issues that he believed were at stake: “combining what are by design supposed to be separate and distinct legislative and judicial powers poses a grave threat to our values of personal liberty, fair notice, and equal protection.”

On the issue of administrative law, Judge Gorsuch's views may be distinguishable from not only those of Justice Scalia but also from those of the other Justices sitting on the court currently (note that Justice Thomas was the author of Brand X). However, despite Justice Scalia's acceptance of Chevron, he did read it more narrowly than did most of his colleagues, leading Citron to suggest that “given [Gorsuch's and Scalia's] parallel commitments to textualism and their parallel understandings of the relative roles of agencies and courts, even this seems like a bridgeable divide between Gorsuch and the justice he might replace.”

Judge Gorsuch offered an interesting opinion dissenting from rehearing en banc in United States v. Nichols, 784 F.3d 666 (10th Cir. 2015) [PDF version], addressing the non-delegation doctrine in the criminal law context from the standpoint of its potential danger to the separation of powers and individual liberty.[10]

Please see our article about Judge Gorsuch's opinion in Montano-Vega v. Holder, 721 F.3d 1175 (10th Cir. 2015) [PDF version], to read about another interesting precedent decision by Judge Gorsuch on immigration law.

CONCLUSION

With the nomination of Judge Gorsuch, President Trump fulfilled his campaign promise to choose a worthy replacement to Justice Scalia for the Supreme Court. Judge Gorsuch has impeccable credentials, and his textualist approach to reading law will be a valuable addition to the Court that arguably only has one Justice — Justice Thomas — who is a full-spectrum textualist and originalist. As Josh Blackman wrote, “[a]s a committed originalist, sound jurist and brilliant writer, Gorsuch will serve as a worthy intellectual heir to Justice Scalia.”[11]

In the immigration context, Judge Gorsuch's record suggests that he may read the law in a way that would be favorable to aliens in the criminal law context. Judge Gorsuch's views on administrative law and judicial deference have the potential to be his most significant contribution to the bench, if they gain traction with his colleagues. I encourage the Senate to confirm Judge Gorsuch expeditiously, and I look forward to seeing him on the Supreme Court.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Mulkern, Anne C., “Gorsuch confirmed for 10th Circuit,” denverpost.com, (Jul. 20, 2006)
2. Hawkins, Derek, “Neil Gorsuch wrote the book on assisted suicide. Here's what he said.” washingtonpost.com, (Feb. 1, 2017)
3. Gorsuch, Neil, “Liberals'N'Lawsuits,” nationalreview.com, (Feb. 7, 2005)
4. Somin, Ilya, “Supreme Court pick Neil Gorsuch has troubling views on federalism and judicial review,” nydailynews.com, (Jan. 31, 2017)
5. Honorable Neil M. Gorsuch, 2016 Sumner Canary Memorial Lecture: Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905 (2016), 906
6. Id. 906
7. Id. 910
8. Citron, Eric, “Potential nominee profile: Neil Gorsuch,” scotusblog.com, (Jan. 13, 2017)
9. Gorsuch, Memorial Lecture, 915
10. Feder, David, “The Administrative Law Originalism of Neil Gorsuch,” yalerjreg.com, (Nov. 21, 2016)
11. Blackman, Josh, “My Take in Politico on Judge Gorsuch: 'The Kennedy Whisperer,;” joshblackman.com, (Feb. 1, 2017)

Lawyer website: http://myattorneyusa.com

Inaccurate Stories and Poor Responses -- The AP's Take on the DHS National Guard Proposal

On February 17, 2017, the Associated Press (AP) posted an article titled “AP Exclusive: DHS weighed Nat Guard for immigration roundups” [PDF version].[1] The author, Garance Burke, reported that the proposal “called for mobilizing up to 100,000 troops in 11 states.” The White House denied the report. The AP stated that it had requested comment on the document, but had received none. Initially, the AP did not release a copy of the draft Department of Homeland Security (DHS) proposal upon which its reporting was based.[2]

Fortunately, other outlets released the proposal, and the AP would follow [PDF version]. A careful analysis of the proposal — which the White House maintained was not a White House document and not under consideration — does not corroborate the AP's reporting regarding using the National Guard for immigration roundups. Rather, the proposal takes the position that qualified members of the State National Guard to participate in federal-state agreements under section 287(g) of the Immigration and Nationality Act (INA) “to perform the functions of an immigration officer in relation to the investigation, apprehension, and detention of aliens in the United States.”

Section 287(g) allows federal immigration enforcement to enter into agreements with States or political subdivisions thereof to have State or local employees assist in immigration enforcement. In order for such officers to participate, the Attorney General must find that the employees are “qualified to perform a function of an immigration officer…” Section 287(g)(9) makes explicit that States or political subdivisions thereof cannot be required to participate. Furthermore, the Governor of a State has discretion over the use of State National Guard employees. The proposal obtained by the AP simply says nothing about mobilizing 100,000 National Guard troops to deport aliens in the United States illegally, but rather ask State governors if they want qualified National Guard troops to participate in accord with a section 287(g) agreement.

The point if this is not to defend a proposal that is reportedly not under consideration, but to note that the AP's reporting was at best sensationalistic, and at worst willfully misleading. Some have claimed that the White House is intentionally leaking proposals and then declining to comment in order to goad the media into posting inaccurate reports.[3] Whether that is the case here, the fact is that the AP misrepresented the plain text of the document. Even assuming that the AP is being truthful in its assertion that it asked the White House for comment and was rebuffed, there is no good explanation for the AP's inability to report accurately on the document that it had in its possession. One is left to wonder if there is a reason that the AP did not immediately post the proposal with the text of its questionable article.

However, as has become a trend, even when the White House has a legitimate grievance, President Donald Trump offers a poor response. The President had two good options on this story. First, he could have left the response to his press office and to the professionals at DHS. Alternatively, the President could have criticized the inaccuracies in the story and offered his comments on what is actually being considered. Instead, the President posted the following remarks to Twitter:

President Trump's response was both in poor taste and contrary to his interest in countering the AP story and other stories that he may find objectionable.

First, President Trump's statement conflates his position with the position of all of the American people in stating that the “FAKE NEWS media” is “the enemy of the American People.” As Ben Shapiro at the Daily Wire noted, “we're playing a dangerous game when our leaders declare their interests identical to those of America, rather than the opposite…”[4] With the sometimes hysterical overreactions of many in the media aside, President Trump's Tweet is unbecoming of the President of a republic. It is indeed possible, and often necessary, to be critical of both bad reporting and the President's response.

Second, President Trump's Twitter commentary distracts from the actual issue he has with the media. If we take the AP story as an example, the President's commentary made the story his generalized critique of the media instead of his qualms with a specific story or piece of reporting. While this may be music to the ears of his most ardent supporters, it does little to show those who are not already inclined to believe that every complaint he renders on Twitter is legitimate. President Trump showed with his recent discussion of section 212(f) of the INA [see blog] that he is more than capable of explaining his position in his unique style. He should consider that approach with regard to criticizing specific stories he finds inaccurate or disagreeable instead of making generalized and overheated statements on Twitter.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Burke, Garance, “AP Exclusive: DHS weighed Nat Guard for immigration roundups,” apnews.com, (Feb. 18, 2017)
2. Shapiro, Ben, “Fake News Or White House Manipulation? Media Reports Draft Trump Plan For 100K Anti-Illegal Immigration Enforcement Force, Trump Denies.” Dailywire.com, (Feb. 18, 2017)
3. Id.
4. Shapiro, Ben, “Trump Calls Press 'Enemy Of The American People.' No President Should Do That.” Dailywire.com, (Feb. 17, 2017)

Lawyer website: http://myattorneyusa.com