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Justice Brett Kavanaugh Weighs on First Immigration Case, Worries Advocates

— October 10, 2018

With Justice Brett Kavanaugh confirmed to the Supreme Court, immigration advocates fear for the future.

USA Today reports that Kavanaugh has only presided over a handful of cases that dealt directly with immigration. Most were varied and ‘dealt with very specific issues.’

However, Kavanaugh’s few forays into immigration affairs have given advocates and attorneys enough to fear.

“The only common thread is the immigrant […] did not benefit from the outcome,” said Leon Fresco, who directed immigration legislation under former President Barack Obama’s Justice Department.

And USA Today says that Marielena Hincapie, head of the National Immigration Law Center, is so concerned about Kavanaugh’s ascension to the Supreme Court that her non-partisan organization issued its first-ever opinion on a nominee.

“Kavanaugh on the court will be devastating for the country for decades to come, especially for women and minorities,” Hinciapie said shortly after Kavanaugh’s confirmation.

Under President Donald Trump, the Supreme Court has its first ‘reliable conservative majority in decades.’

Not everyone is worried that a conservative court could spell disaster for immigrants. John Miano, attorney with the Immigration Reform Law Institute, said he’s faced Kavanaugh in court.

Although Miano’s group advocates policy unfavorable to undocumented immigrants—and has several times sued the federal government—he claims to have lost cases against Kavanaugh at least as often as he’d won.

“People are talking like this is going to be the end of the world, and it’s not,” Miano said. “He’s a bright guy, he’s very thoughtful, and he has a very even temper on the bench.”

Under the Trump administration, arrests of immigrants without criminal histories are at a recent high. Image via U.S. Immigration and Customs Enforcement agency/Wikimedia Commons. Public domain.

But a Supreme Court argument heard on Wednesday has already seen rifts open between Trump’s two appointees, Justices Neil M. Gorsuch and Brett Kavanaugh.

The matter at stake, reports the New York Times, is ‘whether federal authorities must detain immigrants who had committed crimes, often minor ones, no matter how long ago they were released from criminal custody.’

Kavanaugh, citing legislation from 1996, said the government’s compelled to detain migrants even years later, ‘without an opportunity for a bail hearing.’

“What was really going through Congress’s mind in 1996 was harshness on this topic,” he said.

Gorsuch, recounts the times, adopted a more cautious approach, asking if “there was any limit on the government’s power.”

Kavanaugh, says USA Today, vowed throughout his confirmation hearings to ‘adhere to the letter of the law.’

Perhaps Kavanaugh’s last major ruling on immigration affairs prior to being appointed to the Supreme Court involved a 17-year old undocumented immigrant who attempted to get an abortion while in federal custody. The Trump administration argued that teen would be required to either find an American sponsor or be deported before having the procedure performed.

Justice Kavanaugh served as the main voice of dissent on the panel, claiming his colleagues were effectively given undocumented immigrants a “new right” by allowing the girl to get an abortion.

The court ultimately allowed the teen to receive an abortion; a follow-up with the Supreme Court was dismissed, as the issue at stake had been made ‘moot.’

While Kavanaugh certainly seems less than friendly to immigrant affairs, Miano says the justice wouldn’t have been his first pick if he could choose a judge “who would always rule against immigrants.”

“I would enthusiastically support him as a fair judge who has a good demeanor,” Miano said. “But if I wanted to get a judge who’s going to rule for me on everything on immigration, that ain’t Kavanaugh.”


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