Judge Barrett on Immigration

Because of Judge Barrett’s imminent confirmation hearing, I have only summarised the two opinions that Judge Barrett designated as among her most significant. The remaining cases are listed here for the convenience of those who wish to read them.

Yafai v. Pompeo (2019)

Judge Barrett listed this as number two of her ten (actually eleven) most significant decisions on the Court of Appeals for the 7th Circuit. She summarised the case as follows:

A consular officer twice denied the visa application of Zahoor Ahmed, a citizen of Yemen, on the ground that she had sought to smuggle two children into the United States. Ahmed and her husband Moshin Yafai—a United States citizen—filed suit challenging the officer’s decision. Writing for the majority, I explained that the consular officer’s decision to reject the visa application was facially legitimate and bona fide, and the plaintiff had made no affirmative showing that the officer acted in bad faith. The doctrine of consular nonreviewability set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972), accordingly barred judicial review of these claims. The Seventh Circuit denied a petition for rehearing en banc, and I wrote a statement explaining that the panel decision was required by Supreme Court precedent.

[2020 Questionnaire at 33-34]

The judicial panel issued its decision on 4 January, 2019. Judge Barrett wrote the panel’s opinion.

Mohsin Yafai was born and brought up in Yemen, where he married Zahoor Ahmed. The couple had several children. Mr. Yafai eventually moved to the United States and became a naturalised citizen. He then obtained permission for his wife and children to apply for visas to the United States. [2] They did so but, while their applications were pending, two of their children accidentally drowned. [22] Ms. Ahmed’s visa application was rejected on the grounds that she had tried to smuggle two children into the United States “using the identities” of the drowned children. Ahmed informed the responsible official that the named children were dead. The official requested more information, which Ahmed provided, but eventually denied the visa on the same grounds. [2-4] The record before the Court of Appeals did not establish the official’s name or what the official thought Ms. Ahmed had actually done. [Note 1 on page 2, note 2 on page 4]

Yafai and Ahmed challenged the visa denial in court under the Administrative Procedure Act. Judge Sara Ellis dismissed the claims because courts did not have the authority to review the consular official’s decision. [4]

The Court of Appeals for the 7th Circuit did not decide whether Yafai, as an American citizen, had a constitutional right to live in the United States with his spouse. [5] Judge Barrett, writing for the Court, concluded that there was no need to do so. To review a consular official’s visa determination, a court required both violation of a citizen’s constitutional right and a decision that was not facially legitimate. The latter was absent. The official had rejected the application on a statutory basis and, by concluding that the Ms. Ahmed had tried to smuggle children into the United States, factually justified that basis. That was sufficient to render the decision facially legitimate and bona fide. [6] To require proof that the official adequately considered Ahmed’s evidence, at least in the ordinary course of review, would violate the Supreme Court’s decision in Kleindienst v. Mandel. [Note 3 on page 6]

Judge Barrett then considered whether a court could inquire further if it had reason to suspect bad faith. Judge Barrett concluded that the answer was not clear. [7] Regardless, Judge Barrett held that the plaintiffs had failed to prove bad faith, because their only evidence was that the official had reached an unfavourable decision. [8] Judge Barrett also observed that the official’s request for more evidence indicated a good faith attempt to evaluate and consider Ahmed’s position. [8-9]

Judge Barrett therefore affirmed the dismissal of the plaintiffs’ lawsuit.

Judge Ripple dissented. Unable to avoid deciding the question, Judge Ripple concluded that American citizens did have a constitutional liberty interest in a spouse’s visa application. The Supreme Court had implied as much in Mandel and, although the plurality in Kerry v. Din had found no such interest, Judge Ripple found that the (larger) dissent in Din offered an analysis more consistent with the constitutional rights and values previously recognised by the Supreme Court. [10-14] Judge Ripple therefore concluded that American citizens had a cognisable interest in cohabiting with their spouses in America, permitting courts to ensure that those spouses’ immigration applications were treated fairly.

Judge Ripple then addressed whether a bad-faith decision was entitled to consular non-reviewability. He began with the premise that in the 7th Circuit, because no position in Din was supported by a majority of the Supreme Court, Mandel controlled. [18-19 and note 2 on the same pages] Reviewing 7th Circuit precedent applying Mandel, Judge Ripple observed that the Court of Appeals had never evaluated the merits of a government decision, but that previous decisions had all been supported by some evidence and had not given any reason to suspect bad faith. [19-21] Given the scant record before the Court of Appeals, Judge Ripple found it possible that the official had not considered the evidence before denying Ahmed’s visa application, in which case the government would have acted in bad faith. [21-23 and note 11 on pages 23-24] While he did not think that the Court of Appeals could assess whether the government’s decision had been correct, he thought the Court did have the authority to require the government to identify the facts supporting its decision. [23-25]

The Court of Appeals rejected a petition for re-hearing en banc on 23 May, 2019.

Judge Barrett wrote a statement arguing that en banc review was not warranted. She opined that Supreme Court precedent had unambiguously foreclosed the argument that consular officials were required to explain their decision in more detail than by citing to a statutory provision justifying denial of a visa. She elaborated that the Supreme Court’s decision in Mandel prohibited a court from requiring a consular official to provide those facts, that Justice Kennedy’s controlling concurrence in Din specifically limited the government’s requirements to citing to a statutory provision, and that the Supreme Court had recently reiterated its support for that position in Trump v. Hawaii. [5-8, 10-11] Judge Barrett also rejected the argument that the record had been clearer in those cases than it was here. [8-9 and note 1 on pages 9-10] The dissent’s arguments to the contrary were drawn from prisoner discipline cases and, as a result, were inapposite. [11-12] Perhaps there would be an exception for cases of bad faith but, Judge Barrett reiterated, the plaintiffs had failed to plausibly allege bad faith. [12-13]

Chief Judge Wood, joined by Judges Rovner and Hamilton, dissented from the denial of rehearing en banc. Like Judge Ripple in his dissent from the panel’s decision, the Chief Judge would have held that the Due Process Clause of the Fifth Amendment protects an American citizen’s right to live in the United States with a non-citizen spouse. [15-17] The Chief Judge also thought that the requirements of due process were not satisfied, because at no point had the plaintiffs understood why Ms. Ahmed’s visa application was rejected. [18-21] Without knowing that, it was impossible for the plaintiffs to plausibly allege bad faith. [21]

The Chief Judge was careful to explain that she was not advocating for a searching review of the official’s reasoning, simply that the government be required to point to some evidence – any evidence – that justified that decision. [21-23] Chief Judge Wood argued that this position was not foreclosed by Supreme Court precedent: on the contrary, the Supreme Court had expressly refused to hold that the government was required to provide absolutely no information, and previous Supreme Court and 7th Circuit decisions addressing the issue had all addressed situations in which the government provided more information than it had here. [23-26, 28-30, and note 1 on page 25] If the government were not required to provide any proof whatsoever for the basis of its decision besides citing to a statute, it would be protected against any form of investigation by a court, rendering it impossible to ascertain whether an official’s facially legitimate reason truly was supported by a bona fide factual basis or whether the official was violating the law. [26-28, 30-31]

Cook County v. Wolf (2020)

Judge Barrett identified this opinion as number three on the list of her ten (actually eleven) most important opinions on the Court of Appeals for the 7th Circuit. She described the opinion thus:

A county and non-profit organization challenged a rule issued by the Department of Homeland Security to enforce the statutory bar on green cards for those who are likely to become a “public charge.” The rule defined a “public charge” as any noncitizen (with some exceptions) who receives certain cash and noncash government benefits for more than 12 months in a 36 month period. The majority thought that this interpretation was unreasonable, and it affirmed a preliminary injunction of the rule, even though the Supreme Court had previously stayed that injunction. I dissented. ln my view, the plaintiffs could not show that the term “public charge” refers narrowly to someone who is primarily and permanently dependent on government assistance. Instead, the term “public charge” is a capacious term, and the rule is a reasonable interpretation of the leeway that Congress gave the agency.

[2020 Questionnaire at 34-40]

This case is not amenable to summarisation. It reviews several centuries of legislation and does so “at a level of detail that is, unfortunately, excruciating.” [59] I will therefore describe it at a very high level of generality.

The Department of Homeland Security propounded a rule that would define recipients of most forms of public benefits as “public charges,” preventing immigrants likely to receive such benefits from entering the country or adjusting their immigration status. [2-6] This was one of many lawsuits filed across the country to prevent DHS from implementing that rule. The plaintiffs were a local government and a non-profit. The district court granted a preliminary injunction. [6-8] The majority of the panel, for which Chief Judge Wood wrote, affirmed the preliminary injunction. Judge Barrett dissented.

The majority found that Cook County had standing to challenge the Rule because the Rule would discourage immigrants from seeking many forms of preventive health-care, which would cause them to make increased use of medical emergency rooms (paid for by the County) and to risk developing and spreading communicable diseases. [8-10] Judge Barrett agreed that Cook County had standing, because “noncitizens who give up government-funded healthcare are likely to rely on the county-funded emergency room.” [43] The majority held that the non-profit, the Illinois Coalition for Immigrant and Refugee Rights, had standing because it would have to devote resources to educating immigrants about the Rule. [10-11] The majority also held that Cook County’s financial interests in challenging the Rule placed it within the zone of interests protected by the Administrative Procedure Act. [11-13] The majority found it harder to say that ICIRR was within the zone of interests but reached no conclusion on the point, because only one party needed to be. [13-14]

Before reaching the merits, Judge Barrett argued that the majority of the harm imposed on Cook County was caused by public misunderstanding of the Rule, not by the Rule itself. As she understood the Rule, it would have very little effect on most actual or aspiring immigrants to the United States, the exception being lawful immigrants present in the United States applying for a green card. [43-49 and accompanying footnotes] Setting aside her broader concerns, the majority agreed with Judge Barrett that the Rule must be analysed from the perspective of those it did affect. [Note 1 on page 5]

Because the Court of Appeals was ruling on a preliminary injunction, it focused on the likelihood that Cook County would ultimately succeed on the merits. [14-15] It addressed this question by applying the APA, first through the two step Chevron framework and then through analysing whether the rule was arbitrary and capricious. [15-16]

The majority first concluded that Congress had not unambiguously addressed the question at issue. The authorising statute did not define “public charge”. [17] The historical record at the time of enactment, including dictionaries, did not clarify whether a public charge had to be totally dependent on public assistance or merely to receive any of it. [18] A “quick and admittedly incomplete” look at the history of the law in question supported the proposition that to be a public charge was to be primarily and permanently dependent upon government support. It did not, however, demonstrate this was the unambiguously correct interpretation. It also showed a history of delegating extensive discretion to the Executive Branch. [18-25] Judge Barrett agreed that the statute was ambiguous but disagreed with the majority’s interpretation of history. [49-69]

The Court of Appeals therefore progressed to step two of the Chevron analysis. The majority concluded that the Rule was not a permissible construction of the authorising legislation. It rejected the argument that the Rule considered SNAP benefits a form of income, in violation of federal law. [26] It found that the Rule violated the Rehabilitation Act by heavily penalising immigrants with a disability, both because of the disability itself and because of the public health benefits that these immigrants would require to satisfy at least some of their medical needs. [26-28] The Court reconciled the Rehabilitation Act with the “health” provisions of the public charge section by interpreting the latter as referring to communicable disease or conditions requiring long-term institutionalisation. [28-29] The Court was also concerned that the Rule would punish immigrants for receiving benefits to which they were legally entitled. [29-30] Finally, the Court observed that DHS had expressed the belief that it could go even further than it had and stated that there were limits on what constituted a public charge, which the Rule exceeded. [30-31]

Based on her analysis of history, which indicated the term never had a clear meaning and that recent legislative action had shifted towards minimising immigrants’ receipt of benefits, Judge Barrett read the term “public charge” more broadly. [69-70] Judge Barrett found the term “public charge” could reasonably be understood as referring to anyone with too few financial resources to provide for herself, that the DHS had so understood it, and that the benefits it had chosen to consider were all reasonable under this understanding. [70-76] That was enough to satisfy Chevron step two. Judge Barrett found it more disputable that receiving any benefits for a year, or benefits from multiple programs for even a few months, rendered somebody a public charge. Nevertheless, she ultimately concluded that the DHS’ decision fell within the reasonable limits of the term “public charge.” [77-80]

The majority then considered whether the Rule was arbitrary and capricious. Judge Barrett would not have reached this issue, which the district court hadn’t addressed and the parties had barely briefed. [80-81] The majority nevertheless concluded that it was, because it was predictable that immigrants would endeavour to avoid receiving any public benefits and DHS had not properly addressed the consequences of this disenrollment. [31-35] DHS had also failed to address the impact on the structure of state and local governments, which would have to reorganise their own benefit schemes. [35] The majority then found that requiring total self-sufficiency all times, as the Rule effectively did, was beyond what the term “public charge” could bear. [35-37] Additionally, the majority held that asking immigration officials to decide whether a given immigrant would ever require such benefits was inherently arbitrary, because it required excessive speculation that could not be fully grounded in facts. [37-38] Finally, the majority suggested it was arbitrary not to consider permitting immigrants to repay the benefits they had enjoyed. [38]

The majority then considered the remaining requirements for a preliminary injunction. It concluded that Cook County would suffer irreparable harm without one, because health risks would rise (and had already risen) among its residents. [39] It concluded that Cook County had no remedy at law, because the United States had not waived sovereign immunity. [39-40] It also concluded that, despite the Supreme Court’s decision to stay the preliminary injunction while the appeal pended, the balance of equities favoured Cook County. [40-41]

The Court of Appeals therefore affirmed entry of the preliminary injunction.

Alvarenga-Flores v. Sessions (2018)

Judge Barrett wrote the opinion for the Court of Appeals for the 7th Circuit.

Beltran-Aguilar v. Whitaker (2019)

Judge Barrett wrote the opinion for the Court of Appeals for the 7th Circuit.

Herrera-Garcia v. Barr (2019)

Judge Barrett wrote the opinion for the Court of Appeals for the 7th Circuit.

Morales v. Barr (2020)

On 26 June, 2020, Judge Barrett wrote the opinion for the Court of Appeals for the 7th Circuit. On 3 September, 2020, her opinion was amended.

Ruderman v. Whitaker (2019)

Judge Barrett wrote the opinion for the Court of Appeals for the 7th Circuit.

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