President Trump is expected to nominate Judge Amy Barrett of the Seventh Circuit Court of Appeals to fill Judge Ruth Bader Ginsburg’s seat. As an immigration practitioner, I looked at Judge Barrett’s published immigration opinions. A study of these cases shows that Judge Barrett will stick to strict construction of statutes and regulations in cases where a statute or regulation is attacked. In cases where credibility is involved, Judge Barrett sided with the government in two cases upholding the denial of asylum and withholding of removal. One of these cases included a vocal dissent by one of her colleagues on the court.
In this post, I will discuss each one of these cases.
This case involved Wisconsin’s domestic abuse statute and whether it was a “crime of violence” for immigration purposes. Beltran argued that the statute was overbroad statute since minimal nonviolent conduct could be prosecuted under the statute. Wisconsin’s statute prohibited “caus[ing] bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed. Beltran-Aguilar v. Whitaker, 912 F.3d 420, 421 (7th Cir. 2019). Judge Barrett tracked the Supreme Court’s precedent along with the Seventh Circuit’s decisions and decided that Wisconsin’s statute was not overbroad and ruled that it was a crime of violence barring cancellation of removal. Jude Barrett also ruled that Beltran failed to show that there is a realistic probability that Wisconsin would prosecute such minimal conduct.
I respectfully disagree with Judge Barrett’s decision here. In Curtis Johnson, a case on which she based her decision, the Supreme Court ruled that Florida’s battery statute was overbroad because minimal conduct was sufficient for a conviction. Of course, an immigrant in the Eleventh Circuit does not have to prove realistic probability.
However, Judge Barrett failed to consider subsequent Supreme Court decisions ruling the definition of a crime of violence is overbroad. In other words, I believe Judge Barrett should have analyzed the statue under the categorical approach before reaching the realistic probability test.
I put these two cases together because they are similar in facts and relief sought. The two cases involved applicants for asylum and relief under the Convention Against Torture from El Salvador. Alvarenga involved an application for asylum and withholding of removal from El Salvador. The immigration judge had denied relief because the applicant lacked credibility. Judge Barrett agreed with the immigration judge and the Board of Immigration Appeals to rule that two contradictions deemed Alvarenga’s testimony incredible. This case included a dissent from one of the panel members arguing that Judge Barrett failed to consider the “totality of circumstances” in her credibility determination and failed to consider the El Salvadorian government’s history of allowing gangs to operate.
In Herrera, an applicant for relief under the Torture Convention petitioner for review of the immigration judge’s removal order. Herrera testified that when he was a boy, guerillas stopped him and questioned him regarding people who had been working with the military. He also testified that several of his friends were forced to join the military. Judge Barrett ruled that these two incidents did not rise to the level necessary to qualify for relief. She also ruled that he did not show that he would be more likely to be torture by gangs and that the El Salvadorian government would acquiesce in such torture.
I agree with the dissent in Alvarenga. Credibility determinations must use the totality of circumstances and should not be only supported by limited information in the record. Judge Barrett did not consider the El Salvadorian government’s acquiescence in the Herrera decisions.
Meza Morales involved a U visa applicant who was ordered removed after an immigration judge denied his request for a continuance or administrative closure. Meza Morales, as a victim of a crime, qualified for a U visa. He was placed in removal proceedings while his case was pending. The immigration judge waived two grounds of inadmissibility then ordered him removed after he asked for a continuance or administrative closure. He appealed to the Board of Immigration Appeals, which upheld the immigration judge’s decision. He petitioned for review.
There were several issues in the case including whether the case was moot because the Service approved the U visa application. The other issues included whether the order of removal under the same ground which the immigration judge ordered removal. The last two issues involved the denial of the motions to continue and administrative closure.
Regarding the first issue, Judge Barrett ruled that the case was not moot since the order of removal was still in question. As to the waivers, the judge ruled that the removal order was proper because Meza Morales was not in status when the immigration judge ordered his removal. Both sides agreed that remand to the Board of immigration appeals was proper to determine whether a continuance was proper.
The government argued the denial of administrative closure was proper considering the Attorney General’s decision in Matter of Castro-Tum, 27 I&N Dec. 271 (AG 2018). In that decision, the Attorney General ruled that the regulations did not permit an immigration judge to administratively close a case. After reviewing the pertinent regulations, Judge Barrett ruled that the Attorney General’s reasoning was not supported by the pertinent regulations. So, Judge Barrett overruled the Attorney General and remanded the case for further consideration.
Please understand that this analysis of Judge Barrett’s immigration decisions and not her other decisions. Her immigration record shows strict adherence to the text of the law. Her decisions regarding asylum are a little troubling, but they are to be expected in the current administration. However, she seems to not be shy when it comes to overruling the Attorney General when he misinterprets the law.
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