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  • Joseph Caraccio

Scalia & Immigration

In his thirty years on the bench at the country's highest Court Justice Scalia encountered his fair share of of immigration cases. Looking back at his opinions, where did Scalia stand on Immigration?



Justice Scalia Laughing

In 1992 Scalia wrote the opinion for INS v. Elias-Zacarias. At issue was whether a Guatemalan citizen could obtain asylum based on the claim that a guerrilla organization attempted to coerce him into performing military service. Scalia’s interpretation of the relevant statute found that coercion into performing military service was not grounds for asylum because he was not targeted based on political opinion. This decision was obviously not pro-immigrant but the way the statute is written, Scalia’s interpretation is correct.


A year later in Reno v. Flores, Scalia, upheld an Immigration and Naturalization Service (INS) policy that provided that detained unaccompanied minors could only be released to parents, legal guardians, or close relatives, but not “other responsible adults.” Respondents challenged the regulation, on the grounds that it violated due process, equal protection, and went beyond the scope of the Attorney General’s discretion. Scalia held that the INS policy was a “reasonable response to the difficult problems presented” by the apprehension of unaccompanied minors. Scalia acknowledged that other policies may be better, but in typical Scalia fashion he noted that the Court should not act as a “legislature charged with formulating public policy.” In this decision Scalia again focuses on the law and his role as a Justice. His opinion is neither pro-immigrant nor anti-immigrant. Scalia didn’t bring politics into his opinions.


In INS v. Yueh-Shaio Yang a 1996 unanimous decision, Scalia held that the U.S. government may take into account acts of fraud committed in connection with entry into the US. INS’ policy at the time was to ignore such fraud in making their determinations. Scalia’s opinion notes that INS’ policy is the “INS's own invention and is not required by the statutory text.” Scalia held that the statutory text trumped an internal agency policy and deferred to the Attorney General to distinguish between noncitizens that engaged in a pattern of fraud. That is Scalia in a nutshell. He reads the law as it is written.

Justice Scalia on Immigration Issues

Almost a decade later in Clark v. Martinez, Scalia extended the holding in Zadvydas v. Davis to include inadmissible aliens as well. Several hundred long-term detainees were ordered released from the custody as a result. This decision does seem a little strange considering Scalia wrote a dissenting opinion in Zadvydas v. Davis, in which he stated that non-citizens with a final order of removal had no legal right to be released from detention. However, the legal issue at bar in Clark v. Martinez was the extension of the previous holding and even if one did not agree with the previous holding it was legally proper to extend the holding of Zadvyadas to inadmissible aliens.


In 2012 Scalia, penned a dissenting opinion, in Arizona v. US, the case regarding Arizona’s controversial immigration enforcement law that was causing a major uproar in the immigration community. Scalia’s dissenting opinion in this case is often cited to as an example of his political agenda. Scalia’s dissent in this case is in line with Scalia’s typical legal analysis and the emphatic opinion that SCOTUS should not be deciding issues of politics or morality. He strictly applies on the law. He explains the majority’s decision cannot be reconciled with state’s rights. As Scalia puts it, it denied states the authority “to exclude from the sovereign’s territory people who have no right to be there.”


Scalia’s final opinion on immigration was in Kerry v. Din decided last year during his final term as a Justice. The case involved a US citizen woman challenging the denial of her husband’s visa, which was denied because of his former involvement with the Taliban. Scalia first explained the doctrine of implied fundamental rights had no support in the text of the Constitution. He further reasoned that “even accepting the textually unsupportable doctrine of implied fundamental rights,” a wife was not deprived of a fundamental liberty interest when her noncitizen spouse was denied entrance into the United States. Scalia rejected the idea that Din had a right protected by due process, in this matter. He further explains that when the Constitution refers to “liberty” in terms of due process, liberty being used to describe physical freedom of locomotion. He explains how liberty cannot be interpreted in that context to encompass any possible restriction on any person’s liberty in a case specific scenario. There is no reasonable argument that the due process clause affords individuals a constitutional right to bring others into the country.


Scalia has no stand on immigration issues

I think it is safe to say the Scalia didn't "Stand" anywhere on immigration. Scalia really didn’t push a political agenda from the bench.


His concept of Textualism in interpreting statutes would make it impossible for him to do so. It was no different for the immigration cases he heard. He was not a champion of the cause immigration. He was not an enemy of immigration. He interpreted the law and he did it well. Unfortunately, immigration law, as it is written, is bad law. Don’t blame Scalia for bad law. Blame your congress for that.