Originally Published in Vox
Nicole Narea - September 26, 2020
Judge Amy Coney Barrett, President Donald Trump’s nominee to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, has at times proved an obstacle to the advancement of immigrant rights during her three years on the Seventh Circuit.
As an appellate court judge, Barrett helped to advance one of Trump’s key immigration policies. She sided with his administration in a case over Trump’s policy imposing a wealth test on the millions of immigrants who seek to come to the US annually. In her whopping 40-page dissent in that case, she laid out why the US has the right to block people who it deems likely to become dependent on public assistance in the future — even if they have never used public assistance in the past.
She has also repeatedly refused to review cases brought by immigrants applying for humanitarian protections and other immigration benefits who claimed they had been wrongfully denied. Some of those decisions may have negative repercussions for future such applicants; given that they set a precedent to be followed by judges in lower courts, these refusals could make it harder for immigrants to challenge an adverse decision from a consular officer on their visa application or obtain deportation relief from an immigration judge.
But her rulings haven’t always led to adverse outcomes for immigrants. In one case, she actually prevented the Trump administration from ending a policy that allows immigration judges to indefinitely close deportation cases in which the immigrant doesn’t appear to be a priority for enforcement, giving them a chance to live in the US without fear of deportation.
With Barrett’s mixed record — and only three years of experience on the federal bench — it’s difficult to predict how she would rule on immigration cases before the Supreme Court if she is confirmed, as expected.
The Supreme Court has upheld some of Trump’s signature immigration policies, including his travel ban policy. But it has also thwarted him at key moments: It has temporarily prevented him from ending the Deferred Action for Childhood Arrivals program, which has allowed more than 700,000 young unauthorized immigrants to live and work in the US, and blocked him from putting a citizenship question on the 2020 census, which experts said would depress response rates in immigrant communities.
In those rulings against Trump, Chief Justice John Roberts joined the court’s liberals and cast deciding votes. It’s not clear whether Barrett would play a similar role — or if she would tip the scales in favor of conservatives on high-profile immigration cases going forward. One such case challenging Trump’s policy to exclude unauthorized immigrants from census population counts that will be used to redraw congressional districts in 2021 will likely come before the justices by the end of the year.
Here are some of the key immigration decisions Barrett has issued so far:
She sided with Trump on one of his key immigration policies: the public charge rule.
Perhaps Barrett’s most pivotal immigration ruling was her dissent in the case Cook County v. Wolf, in which the Seventh Circuit temporarily prevented the Trump administration from implementing its so-called “public charge” rule that created barriers to low-income immigrants seeking to enter the US.
Published last year by the Department of Homeland Security, the rule established a test to determine whether an immigrant applying to enter the US, extend their visa, or convert their temporary immigration status into a green card is likely to end up relying on public benefits in the future.
The rule has given immigration officials more leeway to turn away those who are “likely to be a public charge” based on an evaluation of 20 factors, ranging from the use of certain public benefits programs — including food stamps, Section 8 housing vouchers, and Medicaid — to English-language proficiency. It represents one of President Trump’s biggest blows to legal immigration so far.
In June, a majority of the Seventh Circuit voted to strike down the rule, arguing that it “set[s] a trap for the unwary by penalizing people for accepting benefits Congress made available to them.”
In her 40-page dissent, Barrett said she would have upheld the rule, arguing that those challenging it had set forth an exceedingly narrow definition of what it means to be a “public charge” that isn’t consistent with federal law. She also argued that the court should adopt the administration’s definition of “public charge” under the doctrine of Chevron deference, which mandates that judges defer to government agencies’ interpretation of federal law.
“Congress’s willingness to authorize funds to help immigrants who encounter unexpected trouble is perfectly consistent with its reluctance to admit immigrants whose need for help is predictable upon arrival,” she wrote in her dissent.
The rule went into effect again earlier this month following another federal court ruling. It has affected immigrants applying for green cards nationwide and at consulates abroad, as well as those applying for temporary visas overseas such as tourists, business travelers, students, and skilled workers.
The administration hasn’t released detailed data on how many people have been affected by the rule. But Julia Gelatt, a senior policy analyst at the nonpartisan think tank Migration Policy Institute, told Vox that 69 percent of the roughly 5.5 million people who were granted green cards over the past five years would have had at least one negative factor under the rule — which officials could have used as justification to reject their applications for immigration benefits.
She thwarted Trump’s attempt to end a key tool to grant relief to immigrants facing deportation
Former US Attorney Jeff Sessions had tried to revoke a little-known, but key tool that allows immigration judges to make determinations about which immigrants should be prioritized for deportation.
That tool, known as “administrative closure,” allows judges to put deportation proceedings on hold indefinitely for people who already applied for immigration benefits with another government agency. For example, it might apply to a noncitizen who overstayed their visa but is married to a US citizen who applied for a green card with US Citizenship Immigration Services on their behalf.
Sessions had tried to severely limit the circumstances under which immigration judges can administratively close a case, which had the effect of preventing people in deportation proceedings from getting the immigration benefits to which they were entitled.
But in June, Barrett argued in the Seventh Circuit’s opinion in the case Meza Morales v. Barr that Sessions’ decision to do so violated federal regulations that allow immigration judges to “take any action... that is appropriate and necessary” to complete their cases.
“[A]n immigration judge might sometimes conclude, in exercising the discretion granted by [federal regulation], that it is appropriate and necessary to dispose of a case through administrative closure,” she wrote. “Moreover, cases must be disposed of fairly, and granting a noncitizen the opportunity to pursue relief to which she is entitled may be appropriate and necessary for a fair disposition.”
She dismissed a man’s claim for humanitarian protections
In August 2018, Barrett refused to review a Salvadoran citizen’s petition for humanitarian protection in the US, which had been dismissed by immigration judges who didn’t find him to be a credible witness.
Gerson Alvarenga-Flores had testified that he fled El Salvador after witnessing his friend’s murder at the hands of criminal gang members, who consequently threatened him. After he was apprehended at the border and detained, he claimed that he feared returning to his home country and applied for several forms of humanitarian protection, including asylum and protections under the Convention Against Torture.
The immigration judge in his case found inconsistencies in Alvarenga’s testimony describing two separate incidents: He claimed that he had been attacked by gang members while in a taxi and, on another occasion, said he was approached by them on a bus. Alvarenga explained that he gave the testimony in English, even though he does not speak English, which could have led to the confusion.
But the judge nevertheless concluded that his account of being targeted by gangs wasn’t credible, without even considering whether he would have deserved humanitarian protection.
Writing an opinion on behalf of a panel of Seventh Circuit judges, Barrett deferred to the immigration judge, agreeing that Alvarenga was unable to provide an adequate explanation for the discrepancies in his account.
“These two encounters with gang members were crucial to Alvarenga’s claim that gang members were likely to torture him if he returned to El Salvador, yet he could not keep the facts straight with respect to either one,” she wrote.
She ruled against a US citizen challenging his wife’s visa denial
In January 2019, Barrett refused to reconsider a case brought by a naturalized US citizen, Moshin Yafai, whose wife, Zahoor Ahmed, a citizen of Yemen, was twice denied a green card. The consular officer had denied Ahmed’s green card on the grounds that she allegedly tried to smuggle her two children across the border, even though Ahmed and her husband had provided documentation to the embassy that their children had died in a drowning accident.
The ruling could make it harder for visa applicants to challenge arbitrary denials down the line.
Generally, courts can’t review the decisions of consular officers, who interview applicants for immigration benefits and decide whether or not to approve their visas or green cards. There is a narrow exception in the law that allows a US citizen to challenge a consular officer’s decision if it infringes on one of their constitutional rights. But it’s not clear whether one of those constitutional rights is to live with one’s spouse in the US, as Yafai had argued, she said.
“The status of this right is uncertain,” she wrote in the opinion. “Even if the denial of Ahmed’s visa application implicated a constitutional right of Yafai’s, his claim fails because the consular officer’s decision was facially legitimate and bona fide.”
She voted to deport a man who maintained lawful permanent residency for 30 years
In June 2019, Barrett cast the deciding vote in a Seventh Circuit case resulting in the immediate deportation of a Mexican immigrant who had been a lawful permanent resident of the US for three decades and first arrived in the US at age 10. He had been convicted for drug crimes resulting in a more than 10-year prison sentence, but because his mother was a US citizen, he believed he had a right to remain in the US.
The immigrant, Ruben Lopez Ramos, was not given the chance to argue that his deportation violated his rights under the Constitution’s equal protection clause. A short, one-paragraph order sealed his fate, claiming that his argument was “irrational” and had “little chance of succeeding.”
One of Barrett’s colleagues, dissenting, argued that Ramos should have been given his day in court, noting that, due to a now-repealed law, he would have derived US citizenship from his mother had she lived in the US prior to his birth and he could not have been deported. Ramos argued that he was subjected to differential treatment under that law in violation of his equal protection rights.
“He might be right,” US Circuit Judge David Hamilton wrote. Ultimately, however, due to Barrett’s vote, the Seventh Circuit never considered the issue.