It’s not easy to be an immigrant. And these days, the digital news cycle seems to herald doom and gloom for the immigrant community with every click of the computer’s refresh button. I’ve counseled many foreign born clients who have expressed deep anxiety about what the future holds for them — particularly in the midst of our current political climate.
As questions continue to linger about what border walls and immigration bans mean for families in the short term, there are also questions about how current immigration laws will be interpreted in the years and decades to come. These questions have been brought into focus (somewhat) by President Donald Trump’s recent nomination to the Supreme Court, Colorado Federal Judge Neil Gorsuch.
The significance of this nomination stems from the fact that Supreme Court justices serve lifetime tenure. While President Trump’s executive actions might be squelched within the next four years, Gorsuch, one of the youngest judges nominated to the bench at 49, could be making decisions affecting the lives of immigrants for decades to come. For reference, the former Justice Oliver Wendell Holmes Jr. retired from the court at age 90.
Neil Gorsuch’s History on Immigration
Though it’s too early to say exactly how Gorsuch will rule on specific immigration cases that come before the court, we can look at some of his decisions as a federal judge to get a sense of where he stands on certain issues.
A recent article published by the American Immigration Council legal staff notes that Gorusch’s track record as a jurist shows he is “neither a staunch defender nor a harsh critic of immigrant’s rights.” A decision he wrote in 2013 appears to suggest some compassion for an immigrant ensnared in a confusing bureaucratic system.
The case involved Arturo Montano-Vega, who was in the country illegally. Facing deportation, Vega sought to leave the country voluntarily in order to avoid a legally mandated 10-year ban on readmission for aliens who have been ordered removed. But the judge who initially considered Vega’s case denied his request for voluntary departure because of a criminal record. In order to appeal the decision, Vega would have to remain in the country which would subject him to another legally mandated 10-year ban for aliens who are unlawfully in the country for a year or more.
In his decision, Gorsuch offered some compassionate words writing that Vega’s choices offered a “daunting prospect.” Gorsuch added that “admittedly, no option—staying or going—held much attraction” for Vega.
However, in a 2010 case involving a federal immigration detainee who was tased three times by his jailers while restrained, Gorsuch overturned a lower court ruling in favor of the detainee.
While Gorsuch didn’t rule on an abundance of immigration cases during his time on the federal bench, he’ll no doubt get the opportunity if his nomination to the Supreme Court is approved by congress. Gorsuch’s admission to the court would yield a panel of judges tilted in favor of conservative ideology.
Is Gorsuch Similar to Scalia?
A recent New York Times article noted that Gorsuch appears to share some common philosophy on the law with his predecessor, ultra conservative Supreme Court Justice Antonin Scalia. Both men are considered originalists, meaning that when they consider cases, they try to identify with the perspective of the men originally drafted the constitution more than 200 years ago.
In a 2012 dissenting opinion involving Arizona and immigration, Scalia argued that states should have the right to remove what he referred to as “unwanted immigrants.” In his opinion, Scalia wrote “in the first 100 years of the Republic, the States enacted numerous laws restricting immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks.”
But while Scalia was known for writing with a fiery and at times offensive prose, Gorsuch is known for writing with a more courteous demeanor. Whether this quieter tone makes a difference in how he decides cases, remains to be seen.
Gorsuch hails from Colorado, and like all current Supreme Court justices is a graduate of the Ivy League. He attended Columbia University as well as Harvard Law. He was appointed to the United States of Appeals, 10th Circuit by former President George W. Bush in 2006.