By Bonnie Stern Wasser, Staff Attorney, OneAmerica
How might Judge Brett Kavanaugh rule on immigration cases if confirmed to the US Supreme Court? A review of the slim number of immigration cases he has written about provides a little insight as to how he might view the powers of the Executive and Congress to create and carry out the immigration laws.
Judge Kavanaugh currently serves on the D.C. Circuit court of Appeals. The D.C. Circuit is influential on matters involving Administrative Procedures Act challenges and other regulatory, policy and statutory interpretation issues. This is important because this Administration tends to rule in the immigration space by policy memo in the absence of Congressional action or agency rulemaking. The next US Supreme Court term may have cases involving DACA, the proper role of states and cities in helping immigration agencies, the ability to detain parents and children separately and/or indefinitely. Judge Kavanaugh has written primarily dissenting opinions concerning immigrant labor and a detained immigrant’s right to abortion. He tends to lean toward strict statutory interpretation. The Senate should press Judge Kavanaugh on his views on these and other immigration issues.
Immigrant Workers’ Rights
In a 2008 case, Agri Processors v. NLRB, the majority of the D.C. Circuit Court of Appeals held that the National Labor Relations Board (NLRB) properly ruled that undocumented workers at a kosher meat packing planet were “employees” covered by the National Labor Relations Act (NLRA) where their votes could be counted when voting to form a union. The majority relied on Sure-Tan, Inc. v. NLRB, a 1984 case in which the U.S. Supreme Court held that undocumented workers were “employees” allowed to unionize with legal residents and citizens under the NLRA.
Judge Kavanaugh wrote the dissent in Agri Processors stating that the undocumented immigrants’ vote for joining a union “tainted” the election by watering down the votes of legal workers. He wrote that since Sure-Tan, Congress had enacted the Immigration Reform and Control Act (IRCA) of 1982 that penalized employers for hiring undocumented workers. Therefore, Sure-Tan should no longer apply as it was inconsistent with IRCA’s prohibition of hiring undocumented workers who should no longer be NLRA-covered employees.
Notably, Agri Processors had a long history of worker abuse complaints. In 2008, ICE raided Agri Processors. The town of Postville, Iowa lost over 400 workers and destroyed many families and the economy of the town itself. The owners of the plant were convicted and sentenced to prison and the company later went bankrupt. Making the entire situation of worker abuse worse, President Trump just rewarded one of the convicted owners, Sholom Rubashkin, with a pardon thereby condoning this abusive behavior by an employer toward immigrants.
With the court already pro-management, Judge Kavanaugh is unlikely to change the tenor of the court protecting workers’ rights, especially after the most recent union busting case of Janus v. AFSCME decided by the US Supreme Court 5 to 4 this past term. Were another Sure-Tan type fact pattern to reach the US Supreme Court, Sure-Tan could be overturned with Judge Kavanaugh on the bench, thereby further eroding the labor protection rights of undocumented workers.
With the increase in denials in all areas of legal immigration, as part of the “invisible wall” being built by this Administration, immigration lawyers are gearing up for a fight. Expect more litigation in the coming years in the business immigration area.
Judge Kavanaugh wrote another dissenting opinion in a 2014 D.C. Circuit Court of Appeals business immigration case, Fogo de Chao v. Department of Homeland Security. This case involved a restaurant chain seeking to hire a Brazilian churrasqueiro chef. Here, the employer sought to show a Brazilian chef had “specialized knowledge” to qualify for an L-1B multinational transferee visa. The employer had previously brought in numerous churrasquiero chefs in this category for its restaurants in the USA. The majority analyzed at length the procedural background and the agency’s rules on L-1Bs as a mere restatement of statute. In this case, the majority found that the Administrative Appeals Office introduced a new prohibition on consideration of cultural background or nationality that did not exist in the statute or regulations. The case was remanded on the issue of whether the applicant had the appropriate skills. The case dealt in more detail about the issues surrounding the interplay of statutes, regulations and policy memoranda. In his dissenting opinion, Judge Kavanaugh focused more on the protection of US workers, a key theme of the current Administration. He wrote that essentially, the employer failed to show that Americans could not learn Brazilian churrasqueiro cooking. “Mere economic expediency does not authorize an employer to displace American workers.” Judge Kavanaugh’s positions in Agri Processor and Fogo de Chao cases would most likely support the President’s “Buy American Hire American” Executive Order if it is challenged in court.
Detained Immigrant’s Right to Abortion
In Garza v Hargan, a 17-year old pregnant teenage girl was detained by ICE. As an unaccompanied minor, she was turned over to the Office of Refugee Resettlement(ORR) that places such minors in youth shelters. The young girl was placed at a shelter in Texas where she asked for an abortion. Texas requires parental notification. A federal district court judge ordered her to bypass that requirement but attend the required pre-counseling under Texas law. The government filed an emergency request for stay and the D.C. Circuit Court of Appeals issued the stay and set a deadline for ORR to expeditiously find an outside sponsor to take custody of the girl who would then help her get the abortion. Judge Millet dissented arguing that ORR’s refusal to allow the abortion was unconstitutional. She refuted the government’s claim that the girl could get an abortion if she signed for voluntary departure without pursuing her immigration claims. The entire D.C. Circuit Panel heard the case again and this time re-imposed the District Court’s order allowing the girl to get the abortion.
Judge Kavanaugh dissented. However, his dissent carefully balanced the impact on both sides, “weighing the competing interests” of the undue burden on the woman and the need to protect an unborn life. Judge Kavanaugh wrote that the majority decision “reflects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors.” He said the government had a “permissible interest in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion.” He did not join another judge’s dissent that said immigrants do not have a constitutional right to an elective abortion. His opinion is viewed by some conservatives as not protectionist enough against abortion, and that like Chief Justice Roberts, Judge Kavanaugh may not be “reliably conservative” enough.
In the meantime, the government filed for certiorari in the U.S. Supreme Court by which time the girl had already had the abortion. The government alleged the ACLU, who represented the girl’s guardian, to have misrepresented the date of the abortion. The U.S. Supreme Court, however, granted review, vacated the judgment, but rendered the case moot. Since then, the same district court judge has allowed a class action in the case of additional pregnant minors in ORR custody to allow them to have abortions.
Other views of the law
While Judge Kavanaugh could conceivably be a swing vote to change the tide in some immigration cases, in a few cases decided recently, his influence might not have changed the outcome.
Pereira v. Sessions is the most recent immigration case decided this term 8 to 1. Here, the Supreme Court reaffirmed that the Court may apply Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. deference to agency interpretation of a statute 1) when a statute appears ambiguous, and 2) if the agency interpretation is reasonable. But, in this case, a strict reading of the statute governing the Notice to Appear “stop time rule” for cancellation of removal cases was clear and did not require Chevron deference to agency interpretation. (The “stop time rule” says that when accumulating 10 years of residence to qualify for cancellation of removal, the issuance of a Notice to Appear stops the accumulation of that residence. Here, the Court held that improper Notices to Appear do not stop the clock.) The Court applied ordinary rules of statutory construction to determine in Pereira’s favor that the INA statute was clear – that a Notice to Appear must be properly completed and served on the noncitizen. Although upholding Chevron deference to agency interpretations of the law, Pereira shows that the Court finds the clear text of the statute to trump agency interpretations of the statute via regulations or policy. Interestingly, Justice Kennedy wrote a concurring opinion for the majority indicating it may be time to re-examine the premise of Chevron. Chevron deference analysis obviously has wide applicability across all agency rulemaking and policy. Meanwhile, the outcome of Pereira has already had a huge positive impact (thus far) on many immigrants in removal proceedings.
In Sessions v Dimaya, another case from this past term, the Supreme Court held 5 to 4 that a statute describing “a crime of violence” (part of the aggravated felony ground of removal) was unconstitutionally vague under the 5th Amendment Due Process clause because it failed to apprise immigrants of what types of crimes fall into that category. Justice Kagan wrote the majority opinion in which Justice Gorsuch joined in part and in the result, while Justice Kennedy dissented with his other conservative brethren. This case reflects the fact that conservative justices do not always vote in unison or against immigrants.
A similar case is Arizona v. U.S. (2012) where the Supreme Court held 5-3 (Justice Kagan recused) that Arizona’s SB1070 bill was preempted by federal control over immigration, but that in some limited circumstances, state agencies may assist the federal government in enforcement. (Justice Roberts wrote the majority opinion and Justice Kennedy concurred.)
But one more vote to the right could fundamentally change the outcome in potential Supreme Court rulings for birthright citizenship issues, DACA, TPS, undocumented immigrant rights to drivers’ licenses, undocumented immigrant rights to public education, and the right to release from indefinite detention if these issues come up before the Supreme Court.