In Immigration Decision, Gorsuch is Very Scalia-like, After All


April 24, 2018

By Dr. Constantinos E. Scaros

“Trump’s Supreme Court Pick Just Dealt the White House a Big Blow on Immigration” wrote Time. Politico had a similar headline: “Gorsuch Swings against Trump in Deportation Case.” And the Washington Post described it as: “The Trump Administration Loses an Immigration Case – with Gorsuch as the Deciding Vote.”

But it didn’t stop there. The Boston Herald wondered if “Neil Gorsuch Vote May Incur Donald Trump’s Wrath,” and the New York Daily News claimed that in fact, it had: “President Trump Blasts Immigration Law Ruling Made by His Own Supreme Court Pick Neil Gorsuch” (actually, he didn’t).

All of that was a reaction to the U.S. Supreme Court’s ruling on April 17 in Sessions v. Dimaya, in which President Trump’s sole nominee to date to the high court, Neil Gorsuch, whom Trump selected for his conservative judicial philosophy, sided with liberal Justices Elena Kagan, who wrote the opinion (decision), Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor in striking down a federal statute (law) and apparently, at least for the time being, making it more difficult for the federal government to deport some aliens convicted of crimes.

If we are to believe this media narrative, we might be swayed to conclude that either President Trump failed in his attempt to replace the Court’s conservative lion, Antonin Scalia (who died in 2016) or that the president’s immigration policies have become so draconian that even conservative jurists cannot reconcile them.

A closer look at Dimaya, however, reveals otherwise.

Of all types of foreign-born persons in the United States, only naturalized citizens and Legal Permanent Resident (LPR) aliens are immigrants. All other noncitizens (aliens) are either legal nonimmigrants (such as visitors and students), who are here temporarily, or Persons Here Illegally (PHIs). All noncitizens may be subject to deportation for a number of violations, including criminal offenses.

James Dimaya is a LPR who was twice convicted in California for first-degree burglary, which in that state consists of entering into a residential building or room with the intent to commit a felony or a non-felonious theft while inside. As it does not require “breaking and entering,” burglary can be committed, say, if a person accepts an invitation to a party and plans to steal an item from the house, but later realizes the item is no longer there. Though the theft was never committed, the burglary occurred the moment the guest entered the house, even if welcomed inside through the front door.

The U.S. government attempted to deport Dimaya on the grounds that his burglary convictions amounted to an “aggravated felony,” for which there are many definitions under U.S. immigration law, including “crime of violence.”

Although Dimaya did not specifically commit violence, that crime is defined in two ways: either a) violence is an element of the type of offense; or b) the offense in question is a felony for which there is a “substantial risk” of force against a person or property in its commission.

Because violence is not an element of burglary, Dimaya could not be deported under the first option. However, the government argued that burglary generally carries a substantial risk of force against person or property, thereby rendering Dimaya deportable under the second option.

The Immigration Court agreed and ruled against Dimaya, as did the Board of Immigration Appeals.

The Supreme Court, however, concluded that the law as written was unconstitutionally vague. Writing for the majority, Justice Kagan explained that the Court used the same analysis as it had in Johnson v. United States, a case it decided in 2015, in which it determined that a very similar law was too vague to pass constitutional muster. The same group of justices – Breyer, Ginsburg, Kagan, and Sotomayor – comprised the Johnson majority, but the fifth justice at the time was not Gorsuch. Instead, the one joining those four liberals was none other than Antonin Scalia, who authored that opinion.

Scalia passed away in February 2016, and his seat remained vacant until the incoming president, Donald Trump, appointed Gorsuch in January 2017 (he was confirmed in April of that year). When asked what type of justice he would appoint, then-candidate Trump regularly replied: “one like Scalia.”

Judging from Gorsuch’s vote in Dimaya, the president accomplished his mission. Far from being a judicial liberal, Gorsuch reasoned, and voted, in the mode of one of the most conservative jurists in American history.

In no way does Gorsuch’s vote suggest that he is trying to block the president’s attempt to enforce the law against PHIs and deportable legal aliens. Rather, it places the responsibility on Congress to write a better statute. After all, well-written laws are unlikely to be voided by courts.

Incidentally, the government simply could have attempted to deport Dimaya under a different type of aggravated felony: burglary with a minimum one-year sentence. Why, then, did it try for the harder-to-stick “crime of violence” classification? Because crimes of violence are considered so heinous that deportation is much swifter than in other cases. Accordingly, the government gambled, and it lost.

Constantinos E. Scaros has practiced, taught, and written about immigration law. His latest book is: Stop Calling Them “Immigrants.” He is a contributing writer for Attorneys United for a Secure America.

Also published at: Constantinos E. Scaros, In Immigration Decision, Gorsuch is Very Scalia-like, After All, PoliZette, April 24, 2018

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