Vox proclaimed (a day ago) that Kavanaugh was "fed up" with the far right's rhetoric -- and while I think that overstates Kavanaugh's actual leanings, it is correct, directionally. Yesterday that foolish injunction authored by Doughty (out of Louisiana) was excoriated by all nine justices, at oral argument -- on First Amendment grounds. It will go down in flames, when the opinion is issued, as we long predicted.
But this morning, in evidence that he is skewing toward the center of the Court, Kavanaugh authored a majority opinion that holds federal courts -- and courts of appeal -- have jurisdiction to review denials of asylum-status at the administrative (ICE) level. That is a break with more than a decade of the Supremes ducking this issue -- every time it was presented -- on cert. Here's a bit of Kavanaugh's breakthrough:
. . .When an IJ finds a noncitizen removable for violating the immigration laws, Congress provides several avenues for discretionary relief. Relevant here, an IJ may “cancel removal” of a noncitizen who meets certain statutory criteria. Immigration and Nationality Act, 66 Stat. 163, as added and amended, 8 U. S. C. §§1229b(a)–(b). Cancellation of removal permits a noncitizen to remain in the country lawfully. An IJ deciding a noncitizen’s request for cancellation of removal proceeds in two steps. First, the IJ must decide whether the noncitizen is eligible for cancellation under the relevant statutory criteria. Second, an IJ decides whether to exercise his discretion favorably and grant the noncitizen relief in the particular case.1 A noncitizen bears the burden of proving that he both “satisfies the applicable eligibility requirements” and “merits a favorable exercise of discretion.” §1229a(c)(4)(A). Congress enumerated certain statutory criteria to govern the first step of an IJ’s cancellation-of-removal determination. For a noncitizen who never received lawful permanent residence (i.e., a green card), those criteria are stringent. He is eligible for cancellation of removal only if he meets four requirements. . . .
Wilkinson was born in Trinidad and Tobago. After police officers beat, robbed, and threatened to kill him in 2003, Wilkinson fled to the United States on a tourist visa. He has remained in this country ever since, beyond the expiration of his visa. In 2013, Wilkinson had a son, M., with his girlfriend Kenyatta Watson. Both M. and Watson are U. S. citizens.
Wilkinson lived in Pennsylvania and worked to support M. and Watson. M. lived with Wilkinson and Watson for the first two years of his life. Then, because Wilkinson could not take care of his son and work at the same time, he and Watson decided M. would have a better quality of life in New Jersey with his mother and her mother. Wilkinson took the train to visit his son every weekend and provided almost half his monthly wages ($1,200 per month) in informal child support. M. suffers from severe asthma, which requires hospital treatment multiple times a year. Wilkinson helped M. with his inhaler and medications and knew his regimen well. Watson suffers from depression and does not work, so she also relies on Wilkinson’s financial and childcare support. . . .
Wilkinson conceded before the IJ that he was removable under §1227(a)(1)(B) for overstaying his tourist visa. He asked for relief from that removal, claiming eligibility for asylum, withholding of removal, and protection under the Convention Against Torture. Relevant here, he also applied for cancellation of removal based on hardship to his U. S.-citizen son, M. . . .
The administrative IJ denied; and the Third Circuit said it had no authority to review that denial, even sitting as a federal appellate court -- despite looking squarely at a clear statute from Congress authorizing such review.
Today, Kavanaugh and the liberal wing of the Court called BS on this ducking of judicial review responsibility. Wilkinson's case (and that of his son, M.) are sent back down, likely to be permanently granted so-called "hardship relief". M. is a citizen, since he was born here, to a US citizen, Ms. Watson. Now you know. Onward -- rather encouraging, but not yet a cause for celebration at the Supremes.
नमस्ते
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