By Atty. Emmanuel S. Tipon
If “likeability” was the sole desideratum, Amy Coney Barrett, President Trump’s Supreme Court nominee, would win Senate confirmation without batting an eyelash. She is amiable (no pun intended) and has the grace of a Grace Kelly. The seat became vacant with the passing of Justice Ruth Bader Ginsburg. Judge Barrett, 48, is at present a Judge of the U.S. Court of Appeals for the Seventh Circuit.
Chief Justice John Roberts is also “likeable”. But certain people do not like a number of his decisions. [I will talk about that on another day]. The Chief Justice granted my son Noel’s motion for my admission to the United States Supreme Court Bar. I took my oath before Chief Justice Roberts.
In the case of Judge Barrett, as with other nominees, what other factors should be considered?
Will she render “equal justice under law” as emblazoned above the main entrance to the Supreme Court Building; construe the law, not make law; interpret the Constitution according to its text, not according to some other method; follow established and reasonable rules of statutory construction; and respect the doctrine of stare decisis unless erroneous or overtaken by subsequent factual or legal developments?
Religion and sex (gender) are irrelevant and should not be taken into account in selecting a Justice.
IS BARRETT A RACIST?
Questions have been raised on whether Judge Barrett is a racist because of her opinions in immigration cases. But when critics were confronted with the fact that she and her husband adopted two black children from Haiti the charge fell flat. Undaunted, other critics insisted that adopting black children is “racist.” Here is what one (a contributor to CBS television and a Boston university professor) reportedly tweeted: “Some White colonizers “adopted” black children. They “civilized” these “savage” children in the “superior” ways of white people, while using them as props in their lifelong pictures of denial, while cutting the biological parents of these children out of the picture of humanity.” Twitter @Dribram. foxnews.com/media/cbs-news-ibram-x-kendi-white-parents-black-children-adoption. 09/28/2020.
The logic is so twisted and nonsensical. But can you imagine the harm to Judge Barrett’s adopted children when they hear this and how they will feel? Will they summon the courage to ask Judge Barrett and her husband: “Mom, dad did you adopt us to use us as props?” The children’s playmates might soon be chanting, with the egging of the Demoncrats: “Hey, hey, you two props. What do you do to prop Barrett up?”
WHAT IS PAST IS PROLOGUE
“Whereof what’s past is prologue; what to come, in yours and my discharge.” The Tempest by William Shakespeare.
If so, past decisions, opinions, and statements of a judicial nominee should be considered to determine what will be the nominee’s future decisions.
BARRETT AND IMMIGRATION
Let us analyze Judge Barrett’s opinions in immigration cases, as the ponente and as a dissenter.
In Yafai v. Pompeo, 912 F.3d 1018 (2019), https:// www.leagle.com/decision/in- fco20190104186, Judge Barrett, speaking for a majority in a 3-judge panel of the Court of Appeals, 7th Circuit, upheld the dismissal by a district court of an action challenging the denial by a U.S. consular officer of the visa application of an alien from Yemen who had been petitioned by her U.S. citizen husband, on the ground that the alien was inadmissible because she had sought to smuggle two children to the United States, reasoning that the district court correctly dismissed the alien’s challenge under the doctrine of consular nonreviewability.
Judge Barrett said that Congress “delegated the pow- er to determine who may enter the country to the Executive Branch, and courts generally have no authority to second-guess the Executive’s decisions. Kleindienst v. Mandel, 408 U.S. 753, 769-70, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). To that end, the doctrine of consular nonreviewability “bars judicial review of visa decisions made by consular officials abroad.” Matushkina v. Nielsen, 877 F.3d 289, 294 (7th Cir. 2017). There is an exception to this doctrine when the visa denial implicates a constitutional right of an American citizen, yet even in that circumstance, a court may not disturb the consular officer’s decision if the reason given is “facially legitimate and bona fide.”
Rejecting the couple’s in- vocation of this exception to the doctrine of consular non-reviewability claiming that denying the alien a visa implicated her husband’s constitutional rights, namely his right to live in America with his spouse, Judge Barrett pointed out that the status of this right is uncertain. “In Kerry v. Din, a plurality of the Supreme Court said that no such right exists, 135 S.Ct. 2128, 2131, 192 L.Ed.2d 183 (2015).” Even if the denial of the alien’s visa application implicated a constitutional right of her husband, his claim failed because the consular officer’s decision was “facially legitimate and bona fide.”
ANALYSIS. Judge Barrett followed Supreme Court decisions and prior Court of Appeals decisions. There was no racial animus. As an immigration lawyer, I wish that there was no “doctrine of consular nonreviewability” so I could challenge all visa denials by consular officers referred to me by clients.
In Alvarenga-Flores v Sessions, No. A206-184-822 (CA7 08 28 18), involving a petition for review by an El Salvadoran of a decision of the Board of Immigration Appeals upholding the denial by an immigration judge of the alien’s application for asylum, withholding of removal, and relief under the Convention Against Torture because he feared torture and persecution from gang members if he returned to El Salvador, the majority of a 3-judge panel of the Court of Appeals, 7th Circuit, speaking through Judge Barrett, denied the petition for review, holding that substantial evidence supported the decisions of the immigration judge and the Board, and the record did not compel a contrary conclusion. The alien did not possess a visa or travel document and conceded that he was removable. The Immigration Judge denied the alien’s claim for relief based on an adverse credibility finding because of inconsistencies in the alien’s testimony about the events that prompted him to leave El Salvador and that his asylum application was time-barred. Judge Barrett found that the IJ and the Board provided specific reasons for their credibility determinations, the alien failed to explain the discrepancies, and failed to offer convincing corroborating evidence.
ANALYSIS. There is no racial bias in deciding this case. Judge Barrett properly analyzed the requirements to be established by an alien to obtain asylum. Credibility of the asylum applicant is the most critical requirement. Lawyers who successfully win asylum cases are those who know the requirements, present credible evidence to establish them, and prepare clients thoroughly so that they could testify credibly.
In Ramos v Barr, No. 19- 1728, (CA7 06/05/2019), involving a motion for stay of removal pending appeal filed by a Mexican who had been convicted and sentenced to more than ten years for drug offenses, the majority of a 3-judge Court of Appeals panel, of which Judge Barrett was a member, denied the motion, holding that the alien “demonstrated neither the irreparable harm nor substantial likelihood of success on the merits required for a stay under Nken v. Holder,556U.S.418 (2009). The majority said that while it was cognizant that removal imposed a serious burden on petitioner, the Supreme Court had made clear that “the burden of removal alone can- not constitute the requisite irreparable injury.”
ANALYSIS: There was no racial animosity by the panel. The Order faithfully adheres to a Supreme Court decision. A stay is not a matter of right and the alien must comply with the traditional four-factor standard specified in Nken v Holder. We have had alien clients facing removal and we had to comply with Nken to obtain a stay of removal.
In Cook County v Wolf, No. 19-3169 (CA7 06 10 20), involving an appeal by the Secretary of the Department of Homeland Security from an order of a district court granting a preliminary injunction in an action by a county and immigrant advocates to set aside a new rule implementing the “public charge” provision in the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(4), designed to prevent immigrants deemed likely to receive public assistance from entering the country or adjusting their immigration status, 2 members of a 3-judge panel of the Court of Appeals, 7th Circuit, affirmed the district court, holding that the county had adequately established its right to bring its claim and that the district court did not abuse its discretion by granting preliminary injunctive relief.
Judge Barrett, the third member of the panel, dissented saying that the preliminary injunction was based solely on the district court’s interpretation of the term “public charge” but because its analysis was flawed, she would vacate the injunction and remand the case to the district court. Judge Barrett noted that critics of the “public charge” definition characterized it as too harsh. But the same could be said of IIRIRA and the Welfare Reform Act. The latter dramatically rolled back the availability of aid to non-citizens, and both statutes linked those cuts to the public charge provision by making the affidavit of support a condition of admissibility. Judge Barrett said that the plaintiffs’ objections reflect disagreement with this policy choice. Litigation is not the vehicle for resolving policy disputes. She concluded that the DHS’s definition is a reasonable interpretation of the statutory term “public charge.”
ANALYSIS: There is no racial bias by Judge Barrett in her dissent. The people com- plaining against the “public charge” definition were in effect disputing the “policy” considerations for the issuance of the rule. But Judge Barrett correctly pointed out that “litigation is not the vehicle for resolving policy disputes.”
The DHS has imposed an additional burden on applicants for adjustment of status by requiring them to fill up Form I-944 Declaration of Self-Sufficiency, consisting of 18 pages. It is not too difficult to fill up but applicants should seek very competent legal counsel because one mistake could result in rejection. DHS has been adding new forms to be filled up by immigration applicants without a legal challenge except this one. Is one more burden for a chance to live in the United States too difficult to bear? As has been pointed out, nobody is forcing an alien to come or to live in the United States.
There is no guarantee that Judge Barrett’s past decisions on immigration or other issues is a precursor of how she will decide cases in the Supreme Court. Nor is there any guarantee that her judicial philosophy – said to be conservative – will be reflected in future decisions. Look at Justice Gorsuch, touted as a conservative and the first confirmed nominee of President Trump, who ruled that when the law says that a person cannot be discriminated on the basis of sex, the law does not mean only the male and female sex, but also homosexual or transgender people – a virtual third sex. See our article “One-upmanship: God created two sexes; Supreme Court creates a third sex.”
ATTY. TIPON has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He is co-author of the best-seller “Winning by Knowing Your Election Laws” pub- lished by Rex Publishing. He writes columns for Filipino-American newspa- pers and co-hosts “The Tipon Report,” Honolulu’s most witty and useful radio show. He practices law in Honolulu, Hawaii, focusing on immigration and other federal laws. Tel. 808-225-2645. E-mail: firstname.lastname@example.org