This op-ed is part of a series that explores the writings and jurisprudence of Judge Amy Coney Barrett, the president’s nominee for the United States Supreme Court.
Like all federal circuit courts, the United States Court of Appeals for the 7th Circuit handles a fair number of immigration cases. In her three years on the 7th Circuit, Judge Amy Coney Barrett has handled several notable immigration cases. In each, she exhibits an exquisite understanding of the law, sticks to the text of existing statutes, and identifies the strengths and weaknesses of the parties’ legal arguments, all in opinions that are logical, easy to read, and accessible even to non-lawyers.
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Before highlighting Barrett’s immigration cases—in which she has ruled for and against the government, and for and against immigrants—it is worth pausing to note a feature common to her opinions: They follow a consistent template, and they include elegant turns-of-phrase and smooth transitions that smack of common sense, which makes them a joy to read, regardless of whether you agree with her conclusion.
Her immigration opinions employ the following general structure: identification of the parties and their positions; the issues in the case; the statutes, regulations, and/or constitutional provisions in play; and, a detailed, easy-to-understand explanation of the law applicable to the case, including any exceptions or quirks in the law, such as a failure by Congress to define key words or phrases; an explanation of the historical meaning of key words or phrases; an application of the law to the facts of the case; and why the argument of one side prevails, and why the argument of the other fails.
Her opinions are easy to read because she writes the way most regular folks speak. In one dissent, for example, she used phrases like, “flies in the face of the statute,” “one must be clear-eyed,” “the upshot is that,” “switching gears to the plaintiffs,” and, “it blinks reality to describe.” You feel like you’re reading a discussion you overheard at a weekend party among friends.
Barrett has a logical, distinct approach to her writing that gives the litigants, and the public, a clear roadmap of where she is going, how she is getting there, and why she got there. If only more judges adopted her style, legal opinions would be more interesting to read, and more accessible to non-lawyers.
The 7th Circuit has reviewed immigration cases ranging from cases involving a single person who appealed a denial of asylum to cases involving the interpretation of agency guidance that affects scores of people. No matter the kind of case, Barrett’s acumen and judicial rigor is abundantly apparent. Here are four cases that illustrate her faithful adherence to the law.
Cook County v. Wolf
This rule is based on the concept—going back well over a hundred years—that the U.S. should not allow immigrants into the country who are a financial burden on taxpayers because they cannot support themselves, and are thus a “public charge.”
The issue in that case was whether the Trump administration’s rule, defining who is a public charge, was reasonable given the statutes in place. All three judges said the statutes in play were unclear. Two judges found the agency’s rule was unreasonable; Barrett said it was.
By way of background, the Immigration and Nationality Act provides that a noncitizen may be denied admission to this country or an adjustment of status that would allow him to remain if he is likely to become a “public charge.” The statute does not, however, define that term.
The law requires a court to consider the “totality of the circumstances” to answer that question. While the act identifies certain factors as being relevant—such as age, health, family status, assets, resources, education, and skills—it does not tell immigration officials how to weigh those factors or any other relevant ones.
The Department of Homeland Security’s “public charge” rule generally defines that term as any alien who receives certain cash and noncash government benefits for more than 12 months in a 36-month period, including any federal, state, local, or tribal cash assistance for income maintenance and various other forms of assistance to the less fortunate.
The relevant portion of the majority opinion, written by Judge Diane Wood, took 24 pages of intricate legal analysis—involving the opaque text and history of the immigration laws—to conclude that the new “public charge” rule was unreasonable.
In response, Barrett wrote a 39-page dissent containing (at least) an equally rigorous analysis of the relevant statutory text, its history, and various commentators’ descriptions of the immigration laws. After covering the same materials (and more), Barrett concludes that the Department of Homeland Security’s interpretation was reasonable.
She noted, among other things, that in 1999, the Clinton administration issued guidance that directed officers not to “place any weight on the receipt of noncash public benefits or the receipt of cash benefits for purposes other than for income maintenance.”
More to the point, she wrote that “the fact that a prior administration interpreted a statute differently does not establish that the new interpretation is unreasonable.”
Quoting from a Supreme Court case, Barrett noted that “an initial agency interpretation is not instantly carved in stone.”
Whether an agency’s interpretation of a statute is reasonable is governed by a 1984 case known as Chevron U.S.A. Inc. v. Natural Resources Defense Council in which the U.S. Supreme Court established a two-step test for interpreting statutes that agencies administer. The first step asks whether the statute itself provides an answer to the legal question involved in the case.
If the answer is “no,” the second step asks whether the agency’s interpretation is reasonable.
If so, the court must accept the agency’s interpretation, even if the court would read the statute differently.
Both the majority and Barrett concluded that the text of the statute was ambiguous and did not answer the question; they just disagreed about whether the Department of Homeland Security’s interpretation was reasonable.
The federal district court entered a preliminary injunction against enforcement of the rule, and a majority of the 7th Circuit, with Barrett dissenting, upheld the district court’s order in its June 2020 opinion.
The court did not issue a final ruling on the legality of the rule. It decided only whether the district court’s preliminary injunction should stand. The Supreme Court stayed the effect of the district court’s injunction in February 2020, in essence disagreeing with the majority and agreeing with Barrett, so the entire matter is far from over.
Key to Barrett’s dissent was her conclusion that amendments to the public charge provision of the Immigration and Nationality Act, contained in the Welfare Reform Act of 1996, were material. Those amendments added factors to the public charge determination, and required an affidavit of support by a sponsor of an alien.
Barrett concludes her dissent by noting:
many critics of the ‘public charge’ definition characterize it as too harsh. But the same can be said—and has been said—of [the Illegal Immigration Reform and Immigrant Responsibility Act] and the Welfare Reform Act. The latter dramatically rolled back the availability of aid to noncitizens, and both statutes linked those cuts to the public charge provision by making the affidavit of support a condition of admissibility.
Noting that the Department of Homeland Security has chosen to exercise the leeway that Congress delegated to it, Barrett concludes that the plaintiff’s objections “reflect [a] disagreement with this policy choice and even the statutory exclusion itself. Litigation is not the vehicle for resolving policy disputes.”
That last sentence is an anathema to some liberals, who have used the courts as an end-run around legislatures to try to get their unpopular policy preferences implemented.
That is why Barrett’s dissent in this case is likely to be front and center during her confirmation hearings.
Morales v. Barr
Just as you can bet that liberals opposed to Barrett will try to make hay over her reasoned dissent in Cook County, you can be equally confident that, even though they might be pleased by the result, they won’t laud her for her majority opinion in Morales v. Barr, where she rejected the Trump administration’s rule—issued by then-Attorney General Jeff Sessions—that immigration judges lack the authority to administratively close pending deportation cases.
Her opinion in Morales, which was joined by two liberal judges on the 7th Circuit, found that the statute governing immigration judges (who are part of the executive branch under the attorney general) permits the “discretionary exercise of ‘any action’ that is ‘appropriate and necessary for the disposition of … cases.” Administrative closure of a case, reasoned Barrett, was “plainly an ‘action.’”
In ruling as she did, the immigrant was allowed to stay in the country.
Ruano v. Barr
Barrett was also on the panel decision in Ruano v. Barr, which granted asylum to a Mexican national who was tortured by a drug cartel named the Cartel de Jalisco Nueva Generacion because he refused to allow a cartel member to “possess” his wife.
The immigration judge found that Ruano’s fears were credible, that he would likely be tortured if he returned to Mexico, but denied his asylum claim on the grounds that Ruano did not show a nexus between his persecution and membership in a “particular social group.”
To be eligible for asylum under current law (8 U.S.C. § 1158(b)(1)(A)), a petitioner must show that he was unable or unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Citing prior precedent, the majority opinion, which Barrett joined, noted that the court has “recognized that membership in a nuclear family can satisfy the social group requirement.”
Concluding that there was no practical difference between the social group consisting of the wife’s immediate family and Ruano’s immediate family, the court granted the petition for review and remanded the case to the Board of Immigration Appeals.
Yafai v. Pompeo
And finally there is the case of Yafai v. Pompeo, a 2019 case where Barrett faithfully applied the doctrine of consular non-reviewability and upheld the district court judge’s dismissal of a case where a consular officer denied a visa to an immigrant who unlawfully tried to smuggle two (dead) children into the United States.
As in other immigration cases, Barrett, quoting from Kleindienst v. Mandel, a 1972 Supreme Court decision, explained the law in simple, easy-to-understand language, stating: “Congress has delegated the power to determine who may enter the country to the Executive Branch, and courts generally have no authority to second-guess the Executive’s decisions.”
The doctrine of “consular nonreviewability ‘bars judicial review of visa decisions made by consular officials abroad.’”
In that case, Mohsin Yafai and his wife Zahoor Ahmed were born and married in Yemen. Yafai became a naturalized United States citizen in 2001. Subsequently, he filed a petition for an alien relative for his wife (called an I-30 petition) and several of their children, which was granted. The wife and kids then applied for visas.
However, the consular official denied Ahmed’s visa application because he found that she had attempted to smuggle the two kids into the United States, when, in fact, the children had died in a drowning incident. The consular official concluded, after working with the couple’s attorney, that they were engaged in fraud and stood by his denial.
Applying the law, Barrett noted that for a consular officer’s “decision to be facially legitimate and bona fide, the consular officer must identify (1) a valid statute of inadmissibility and (2) the necessary ‘discrete factual predicates’ under the statute.”
Noting that Kleindienst v. Mandel does not allow courts to “look behind the Government’s exclusion of the alien spouse for additional factual details,” Barrett found that the consular official had satisfied each of the two requirements.
Barrett concluded that the officer “provided a facially legitimate and bona fide reason for denying Ahmed’s application. He cited a valid statutory basis … and he provided the factual predicate for his decision.”
Opponents of Barrett will no doubt point to a dissent written by Judge Kenneth Ripple, wherein he criticized the majority for failing to recognize “an important constitutional right,” which, at least according to him, comes from the “values of our constitutional tradition.”
Ripple opined that “a citizen has a cognizable liberty interest in a spouse’s visa application.” He attempted to cobble together a theory of rights by citing the importance of a citizen’s right to live in the United States, the importance of marriage as an institution, the right to raise one’s children, and on and on.
After stitching together his colorful quilt of constitutional rights, Ripple concluded that Yafai “has a constitutionally protected interest in Ms. Ahmed’s presence in the United States.” Try has he might, he could not pierce the doctrine of consular non-reviewability.
Barrett, as she has demonstrated in all of her immigration decisions, faithfully adheres to the text of statutes and the requirements of the Constitution, regardless of the outcome.
This is why she is seen as a threat to some on the left, who view the courts as a super-legislature, not a co-equal branch of government tasked with the limited but equally important job of saying what the law is.