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Immigration Law

Experts: Supreme Court Justice Gorsuch Could Be Key Vote on Immigration Cases

UC Davis School of Law Dean Kevin R. Johnson and Cornell Law School Professor of Immigration Law Practice Stephen W. Yale-Loehr share their thoughts on how Justice Neil Gorsuch's views could affect two big immigration cases now pending at the Supreme Court, Sessions v. Dimaya (to be argued Monday, October 2, 2017) and Jennings v. Rodriguez (to be argued Tuesday, October 3, 2017).

Amelia Thomson-DeVeaux, FiveThirtyEight, Oct. 2, 2017 - "This year’s Supreme Court term begins Monday with a flashback. Two of the first cases to go before the court are being argued for a second time, now with the crucial addition of new Justice Neil Gorsuch, who was not present for the original oral arguments last term and was therefore unable to weigh in.

Gorsuch is poised to serve as the tie-breaking vote in the two cases, which were heard last year when the court had only eight justices. Gorsuch’s ideological footprint from his appellate rulings is very similar to that of Antonin Scalia, the conservative jurist whose death created the vacancy that Gorsuch is filling, and there is an expectation that he will largely be a reliable vote for the court’s right wing. But there are signs that on these immigration cases, at least, he may defy his reputation as a “Scalia clone.”

How Gorsuch responds to these cases, which deal specifically with enforcement of immigration laws, will shed light on the way he thinks about the tension between immigrants’ rights and national security and may give broader clues to his posture on issues that are likely to come before the Supreme Court many times over the next few years. ... 

A win for the defendants in Jennings would have an immediate impact on the 632,261 immigrants awaiting a hearing. “Given the fact that more and more people are being picked up and put into detention, these are very important issues, and it’s important for the Supreme Court to bring some light to this,” said Stephen Yale-Loehr, a professor at Cornell Law School. ... 

Kevin Johnson speculated that whether Gorsuch thinks immigrants also deserve a bail hearing will depend on how disturbed he is by the process’s lack of judicial oversight. “It’s a more refined question than just, ‘Do I favor detention of immigrants?’” he said. “The question is, ‘Do I think there should be a judicial check on executive overreach?’ So it’s not inconceivable that Gorsuch could side with the immigrant here.”

When the rulings come down, Gorsuch’s influence might not be obvious. Coalitions can change when a case is heard before the court again, said Timothy Johnson, the expert on rearguments, and a surprising number of reargued cases have resulted in large majorities. But sussing out where Gorsuch stands on immigration is important not only because of the role he seems poised to play on the court, but also because of the growing prominence of immigration-related cases.

Conflicts about noncitizens’ rights in the detention system are becoming increasingly common, Kevin Johnson said, because of a 1996 expansion of the law that is being challenged in Sessions, which made it possible for enforcement officials to remove and detain more immigrants. As the population of detained immigrants rose, he said, the resulting rapid growth in immigrant detention facilities created a cottage industry of cases related to detainment itself, which are now percolating in the lower courts.

But the high-profile nature of the two cases before the court means that the justices are likely to tread carefully in their ruling. “Immigration is a political hot potato, so I would predict a narrow ruling — no sweeping statements about immigrants’ constitutional rights,” Yale-Loehr said. “But in a practical sense, the rulings in these cases will either help immigrants or they will hurt immigrants, and that’s why they’re so important.” "