Supreme Court Justice Antonin Scalia’s recent passing has spurred a wealth of commentary about his career and legal philosophy, including the recognition that the legendary conservative jurist issued a number of rulings sympathetic to criminal defendants [see here, here, or here]. What have attracted less notice so far are his consistent votes for noncitizens in cases involving the immigration consequences of criminal convictions, or for defendants in cases involving the sentencing consequences of prior convictions. In both types of cases, Scalia was an extremely reliable vote for the “categorical approach,” analyzing a person’s prior convictions by measuring the minimum conduct covered by that criminal offense and not by a re-litigation of the underlying facts of the prior conviction in a later removal or sentencing hearing.
As a result of his fidelity to strict categorical analysis of prior convictions and a demand that the immigration agencies stay faithful to the text of their own statutes, Scalia voted for the noncitizen over the government in nearly every landmark crimmigration victory in recent history, including in Leocal v. Ashcroft, 543 U.S. 1 (2004); Lopez v. Gonzales, 549 U.S. 47 (2006); Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010); Judulang v. Holder, 132 S. Ct. 476 (2011); Moncrieffe v. Holder, 133 S. Ct. 1678 (2013); and Mellouli v. Lynch, 135 S. Ct. 1980 (2015). (In an interesting bit of trivia, current D.C. Circuit Judge Sri Srinivasan, a leading candidate for Scalia’s seat, was lead counsel on Carachuri-Rosendo, giving him some genuine crimmigration chops.)
In Moncrieffe, Scalia might have easily joined the dissent of Justices Alito and Thomas, who he often agreed with on other issues, but instead joined in full the majority opinion of Justice Sotomayor, who rejected the classification of a low-level marijuana offense as a drug trafficking “aggravated felony,” and along the way noted the difficulties faced by unrepresented detained immigrants facing deportation and the government’s repeated overreaching in drug-related deportation cases. Scalia did the same in Mellouli last year, joining the majority opinion of Justice Ginsburg that affirmed that federal immigration consequences can only attach to drug offenses that necessarily involve federally controlled substances, rather than joining another Alito-Thomas dissent.
In addition, Scalia voted for the defendant in nearly every major sentencing case dealing with categorical analysis of prior criminal convictions, including Taylor v. U.S., 495 U.S. 575 (1990); Shepard v. U.S., 544 U.S. 13 (2005); Descamps v. U.S., 133 S. Ct. 2276 (2013) [more on Descamps here]; and Johnson v. U.S., 135 S. Ct. 2551 (2015) [more on Johnson here]. These votes are of equal importance because the Supreme Court, and now most lower courts, use the same categorical approach in both immigration and sentencing cases, such that one or more of these cases are cited in virtually every competent brief on criminal removability issues filed before an immigration judge or appeals court.
Notably, Scalia’s majority opinion in Johnson last year, finding that part of the Armed Career Criminal Act’s definition of a “violent felony” is void for vagueness, has proved to have seismic effects in the immigration world. Three circuit courts in the past four months have ruled that the similarly-worded “crime of violence” definition that is incorporated into multiple grounds of removability is also void for vagueness. See Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) [Dimaya analyzed here]; U.S. v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015) [discussed here]; U.S. v. Gonzales-Longoria, — F. 3d —, 2016 WL 537612 (5th Cir. 2016).
This is not to say that Scalia’s legacy on immigration issues generally is entirely positive. His angry and political dissent in Arizona v. U.S., 132 S. Ct. 2492 (2012), is an inescapable part of his legacy, and Scalia will be remembered for oddly taking a shot at the Deferred Action for Childhood Arrivals program that had recently been announced by President Obama, which was unrelated to the Arizona law being challenged. Scalia also voted against the noncitizen in a number of other landmark cases, including INS v. St. Cyr., 533 U.S. 289 (2001); Demore v. Kim, 538 U.S. 510 (2003); and Padilla v. Kentucky, 559 U.S. 356 (2010) [for more on Padilla, see here]. What we can say, though, is that Scalia’s legacy is far more complex even on the single issue of immigration than calling him conservative or liberal, pro-immigrant or anti-immigrant. As with many other issues, Scalia had firmly held principles, and would not hesitate to vote for the noncitizen if it meant his views on statutory construction would be upheld.
Scalia’s majority opinion in Clark v. Martinez, 543 U.S. 371 (2005), is a particularly interesting example of these principles. Although Scalia had voted with the dissent in Zadvydas v. Davis, 533 U.S. 678 (2001) four years earlier, arguing that detained noncitizens who could not be deported were not entitled to release, by the time of the Clark decision Zadvydas was the law of the land. Rather than join Justices Rehnquist and Thomas in dissent, Scalia wrote a straightforward opinion holding that the due process holding of Zadvydas must be extended to detained Mariel Cuban men who could not be deported. As Scalia explained, there was no principled way to parse the post-removal order statute, INA § 241, 8 U.S.C. § 1231, to protect against indefinite detention for noncitizens found deportable, like the Zadvydas petitioners, but not those who had been found inadmissible and paroled into the country, as had the Clark petitioners.
If it seems strange that Scalia’s votes were largely far more helpful to immigrants convicted of crimes than those whose are undocumented but lack criminal records – it is only strange to an observer trying to fit an entirely political frame on a justice who had many motivating principles, with his political inclinations being only one. More broadly, Scalia’s voting record is a reminder that good lawyers can win cases presenting criminal immigration issues even when our clients are not the most politically popular – such cases can and have been won in front of “conservative” justices by presenting the best possible arguments about proper statutory construction and the most efficient and rigorous way for appellate courts to consider the immigration agencies’ actions. Whoever replaces Justice Scalia, I hope it will be a judge willing to shut out the cries of partisan politics and vote for noncitizens and criminal defendants where justice requires it. That Justice Scalia often, if not always, did so, is worth remembering as we discuss his legacy.
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