Immigration Outlook: The Presidential Election and Amy Coney Barrett

Competing Perspectives: The Potential Impact of the 2020 Presidential Election on Immigration

This AILA one-pager helps clients understand the potential impact of the 2020 presidential election as it relates to immigration. A PDF is available here.

What does Amy Coney Barrett’s confirmation to the Supreme Court mean for immigration?

On October 26th, 2020, one week before election day, Amy Coney Barrett was confirmed to serve as a Supreme Court Justice.

In the coming months, Barrett will hear several cases related to immigration. Earlier this month, the court agreed to hear the case regarding Trump’s order to exclude undocumented immigrants from the 2020 Census for the reapportionment of Congress seats. The Supreme Court will also decide on the ‘Remain in Mexico’ policy, which requires migrants to wait in Mexico while their asylum application is pending. Another case, Niz-Chavez v. Barr, questions which type of government notice ceases the seven consecutive years of residency required to qualify for deportation relief, known as the “stop-time rule.” Albence v. Guzman Chavez will address whether immigrants being held in detention centers pending deportation have the right to a bond hearing. Barrett will be instrumental in deciding these cases, which stand to change immigration procedures and policies substantially.

Currently, there are several lawsuits against the Department of Labor’s (DOL) Interim Final Rule changing the way prevailing wage rates are calculated, significantly increasing the wages employers are required to pay foreign employees. The American Immigration Lawyers Association (AILA) and its Board of Governors, as well as numerous IT companies filed suits against DOL, arguing the rule is “arbitrary and capricious” and in violation of both the Immigration and Administrative Procedures Act. All of these prevailing wage lawsuits stand to reach the Supreme Court, where Barrett’s history and a conservative majority indicate the court is likely to rule in favor of the Department of Labor.

As a federal circuit court judge, Barrett sided with the government in immigration cases 88% of the time. Some of her rulings on immigration as a Seventh Circuit judge include:

  • Gerson E. Alvarenga-Flores v. Jefferson B. Sessions III (2018): Barrett wrote an opinion rejecting the asylum application of a victim of the gang MS-13 based on minor inconsistencies in his story. Alvarenga-Flores’ claimed that these inconsistencies are a result of his limited English language skills. Barrett denied Alvarenga-Flores’ requests to redact his name in published records of the case, citing fears of being targeted by the gang.
  • Maria Azucena Pomposo Lopez v. William P. Barr (2019): Barrett agreed with an immigration judge’s decision to deny protection to a Mexican family who had been held at gunpoint and threatened by a gang on a multitude of occasions.
  • Cook County, Illinois v. Chad F. Wolf (2020): Barrett wrote a dissent in defense of Chad Wolf and the Department of Homeland Security who sought to expand the Public Charge Rule. The intent of this rule is to ensure that any immigrant who received public assistance will be denied a visa.

A judge’s voting history is an imperfect method of predicting her future opinions but, based on past rulings, we can speculate that Barrett is not likely to side with immigrants in future cases brought to the Supreme Court. Barrett's writing in prior decisions suggest she is a "textualist,” meaning she supports a rigid reading of the law's text. The late Justice Antonin Scalia, a strict conservative, was also considered a textualist and was known to reject attempts to interpret laws beyond the actual words of the statute.

Barrett’s appointment heavily tipped the balance of the Supreme Court, now a 6-3 conservative majority. Barrett’s record on immigration and her alignment with conservatives working to restrict immigration suggest that her presence on the nation’s top court will result in decisions overall that are less favorable to immigrants.

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