Immigration Law

Justice Scalia's Crimmigration Legacy - Andrea Saenz

Andrea Saenz, Feb. 16, 2016 - "Supreme Court Justice Antonin Scalia’s recent passing has spurred a wealth of commentary about his career and legal philosophy, including the recognition that the legendary conservative jurist issued a number of rulings sympathetic to criminal defendants [see herehere, or here]. What have attracted less notice so far are his consistent votes for noncitizens in cases involving the immigration consequences of criminal convictions, or for defendants in cases involving the sentencing consequences of prior convictions. In both types of cases, Scalia was an extremely reliable vote for the “categorical approach,” analyzing a person’s prior convictions by measuring the minimum conduct covered by that criminal offense and not by a re-litigation of the underlying facts of the prior conviction in a later removal or sentencing hearing.

As a result of his fidelity to strict categorical analysis of prior convictions and a demand that the immigration agencies stay faithful to the text of their own statutes, Scalia voted for the noncitizen over the government in nearly every landmark crimmigration victory in recent history, including in Leocal v. Ashcroft, 543 U.S. 1 (2004); Lopez v. Gonzales, 549 U.S. 47 (2006); Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010);Judulang v. Holder, 132 S. Ct. 476 (2011); Moncrieffe v. Holder, 133 S. Ct. 1678 (2013); and Mellouli v. Lynch, 135 S. Ct. 1980 (2015). (In an interesting bit of trivia, current D.C. Circuit Judge Sri Srinivasan, a leading candidate for Scalia’s seat, was lead counsel on Carachuri-Rosendo, giving him some genuine crimmigration chops.) ... [more] ..."

Andrea Saenz
Clinical Teaching Fellow
Kathryn O. Greenberg Immigration Justice Clinic