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Immigration Reform On The Minds Of Lawmakers, The Public And Now The High Court: How Will The Court Rule With Alito And Roberts On The Bench

by Christopher W. Helt, Esq.

For much of this nation’s history, the Supreme Court did not deal with the regulation of immigration. Instead, coastal states such as Maryland, Massachusetts, and New York each provided its own specifications for the admission of aliens. In 1837, the New York laws were challenged and upheld the Supreme Court, which unambiguously affirmed that states could regulate immigration through the exercise of their police powers. [1] In just over a decade, though, the Court reversed itself in what became popularly known as the Passenger Cases.[2] Since that opinion, the Court has often been at the forefront of immigration and naturalization policy and enforcement.

All of that has changed. Immigration reform will happen. And now the High Court will also add to this great debate, on more minds of Americans than the war in Iraq. Most recently, the Court has taken up this gauntlet by granting certiorari in two cases: Lopez v. Gonzales, Case No. 05-547, and Toledo-Flores v. U.S., Case No. 05-7664. The first case presents the question of “Whether an immigrant who is convicted in state court of a drug crime that is a felony under the state’s law but that would only be a misdemeanor under federal law has committed an ‘aggravated felony’ for purposes of immigration law.” The Eighth Circuit previously held that the petitioner – the immigrant in question – had committed an aggravated felony under the INA, and, as such, upheld the Board of Immigration Appeal’s BIA determination of removal. At a time when immigration is on the minds of most Americans, these cases certainly will be closely watched.

The second case asks if “the Fifth Circuit erred in holding – in opposition to the Second, Third, Sixth, and Ninth Circuits – that a state felony conviction for simply possession of a controlled substance is a ‘drug trafficking’ crime under 18 U.S.C. §942(c)(2) [the Controlled Substances Act] and hence an ‘aggravated felony,’ under 8 U.S.C. §101(a)(43)(B), even though the same crime is a misdemeanor under federal law?”

These two cases, now consolidated by the Court [3], arise at a time of transition for the Supreme Court, as two new Justices – Alito and Chief Justice Roberts – are just beginning to make their mark on American jurisprudence. In many senses, these two individuals are still unknown quantities. Yet their past decisions may shed some light on how they may vote in Lopez and Toledo-Flores.

Looking Back To Predict The Future

During his tenure as a judge on the United States Court of Appeals for the Third Circuit, Justice Alito never adopted a particularly recognizable jurisprudence. Unlike Justice Scalia, for example, Samuel Alito never published any articles or books extolling the virtues of one specific theory of statutory construction or constitutional interpretation. [4] Conversely, though, he has also not backed the notion of a living Constitution as Justice Breyer did in his work “Active Liberty.” [5] Yet a few intellectual strands run through nearly all of his immigration decisions, and these two threads seem often at odds with each other: on the one hand, he seems to exhibit genuine empathy for those seeking better lives in the United States; on the other hand, his extreme deference to administrative agencies – such as the Immigration and Naturalization Service (INS), the BIA, and, presumably, the Department of Homeland Security (DHS) – often frustrates the efforts of immigrants and political asylum seekers to establish homes and families in this nation. Ultimately, the latter concern of his should give all immigration petitioners pause for thought.

His Immigration Decisions

Justice Alito authored nine published opinions dealing with political asylum cases; in all but two of them, he sided with the BIA. In the eight published opinions dealing with non-asylum immigration cases, Justice Alito sided with the BIA on seven occasions. This stands in stark contrast to Judge Posner’s – probably the most respected judge in the nation outside of the Supreme Court – recent comment that “criticisms of the Board and the immigration judges [by other judges] have frequently been severe.” [6]

As mentioned above, though, Justice Alito has shown sympathy for the immigrants bought before him. In one case, he stated that “if a women’s opposition to…[her home country’s] laws in question is so profound that she would choose to suffer the sever consequences of noncompliance,” then perhaps she may be a member of a particular social group justifying asylum.[7] But he still ultimately denied her relief because the administrative record did not demonstrate such opposition – even though during the proceedings before the Third Circuit the woman in question time and time again averred such beliefs.[8]

Underlying nearly all of Justice Alito’s immigration decisions is a reliance on the Chevron Doctrine.[9] The doctrine holds that courts must enforce any unambiguous statutes, assuming that Congress means what it says when it enacts laws. Under certain circumstances, however, the legislature intended for administrative agencies – not the courts – to construe statutes and resolve any ambiguities. The justification for this deference to administrative agencies rests not on any expertise they may possess, but rather because as part of the executive branch, they are more responsible to the polity as a whole than the judiciary. 

Conservatives, in general, virulently support the Chevron Doctrine, as they believe it tends to rein in what they perceive as an activist judiciary run amok. [10] As Justice Alito himself once wrote in denying political asylum to the unmarried partner of a woman forced to undergo an abortion in her native China,

The respondent in this case (hereinafter “the government”) contends that the BIA’s interpretation of 8 U.S.C. §1101(a)(42) as covering the spouses but not the unmarried partners of persons who have been forced to undergo abortions or sterilization is entitled to deference under Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., and should be sustained. Chevron applies when it appears that Congress delegated authority to the agency to generally make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. If Chevron applies, a court must ask (at what is customarily called step one) whether Congress has directly spoken to the precise question at issue. If so, courts, as well as the agency, must give effect to the unambiguously expressed intent of Congress. However, whenever Congress has explicitly left a gap for the agency to fill, a court must proceed to step two, and the agency’s interpretation is given controlling weight unless it is arbitrary, capricious, or manifestly contrary to the statute. The Court has described this test as one of reasonableness.
Here there is no dispute that the BIA should be accorded Chevron deference for its interpretations of the immigration laws.[11]

Justice Alito used similar reasoning in Acosta v. Ashcroft.[12] In 1995, Ramon Acosta pled nolo contendere to a charge of heroin possession. At issue before the court was whether the Immigration and Naturalization Act (INA) of 1952 recognized an exception to the rule that a conviction of a controlled substance offense could result in deportation; the BIA had already ruled against Acosta. (Then) Judge Alito began his opinion by citing Chevron and noting “[i]n its interpretation of the INA, the BIA should be afforded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication.” [13]

The outcome in Acosta seems to indicate that Alito will hold that the possession of controlled substances is indeed an aggravated felony when the Court hears Lopez. Similarly, in Munroe v. Ashcroft, Justice Alito also used the aggravated felony argument to affirm a deportation order.[14] In Munroe, a lawful permanent resident was charged with two counts of theft by deception for a total amount of $11,522. Although he was found guilty, the Prosecutor’s office, in a display of altruism, asked the Superior Court to reduce the restitution amount to $9,999, so that Munroe would not meet the $10,000 minimum for an aggravated felony, and thus be subject to deportation. The Court agreed to this motion. But Alito reversed this determination, stating that

The amount of restitution ordered as a result of a conviction may be helpful to a court’s inquiry into the amount of loss to the victim if the plea agreement or the indictment is unclear as to the loss suffered. But when the amount of restitution ordered is not based on a finding as to the amount of the loss but is instead intended solely to affect the defendant’s immigration status, the amount of restitution is not controlling.[15]

Furthermore, he ended his opinion on a note which must ring ominous for the petitioner in Lopez:

…although we need not reach the question, we note that there is authority for the proposition that ‘when a court vacates an otherwise final and valid conviction on equitable grounds merely to avoid the immigration-law consequences of the conviction, it usurps Congress’s plenary power to set the terms and conditions of American citizenship and the executive’s discretion to administer the immigration laws.[16]

Justice Roberts: Wild Card?

Because his tenure as an appellate level judge was much more brief than that of Justice Alito, Chief Justice Roberts does not have as much of a paper trail regarding immigration. As an immigration attorney never known to mince words stated that Roberts’s record on immigration “is indecisive. We really don’t know what he believes in.”[17]

The only concrete evidence regarding Chief Justice Roberts’s views on immigration is a memorandum he wrote while serving in the Reagan-era Justice Department. The memo was in response to the Supreme Court’s decision in Plyer v. Doe, a case which held that Texas could not deny public education to undocumented aliens.[18] The memorandum is short – only two pages long, and most of it simply summarizes the majority and dissenting opinions of the Court.[19] It betrays only a hint of its author’s views toward the end:

It seems likely that the dissenting Justices had particularly tried to win over Justice Powell, but were unable to do so. The dissent notes with specific approval the warning Justice Powell had given in an earlier case, where he had written that raising the level of judicial scrutiny in Equal Protection cases according to the Court’s view of the societal importance of the interest affected, tends to cause the Court to assume a “legislative role.”

As you will recall, the Solicitor General’s office had decided not to take a position before the Supreme Court on the Equal Protection issue in this case. The briefs for the State of Texas were quite poor. It is our belief that a brief filed by the Solicitor General’s Office supporting the State of Texas – and the values of judicial restraint – could well have moved Justice Powell into the Chief Justice’s camp and altered the outcome of the case.

In sum, this is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have.[20]

Chief Justice Roberts was only 26 years old when he joined the Reagan administration, and only 31 when he left. This memorandum, like hundreds of others he wrote or co-authored, reveal no diabolical personal agenda. Unlike a judge, he was just another government attorney working for a Republican administration, where naturally his memoranda would exhibit a conservative judicial philosophy. Some immigration advocates say that Roberts preferred to see immigrant children removed from class. It is far more likely that Roberts followed established guidelines from his superiors, rather than to court controversy. Rare would be the occasion when a government attorney would write a scathing memorandum disagreeing with the government’s position.

In all likelihood, Roberts’s stance on immigration will be to take a careful, reserved, even conservative approach, as he has throughout his entire life. Unlike Justice Stevens, who was appointed by President Nixon, and then proceeded to be one of the most liberal justices on the Court, there will probably be no jurisprudential surprises during Roberts’s tenure. But the term conservative takes on varied meanings, and it is unlikely that Roberts will be engaging in judicial advocacy or legislating form the bench from either side of the political spectrum when the High Court takes on Lopez and Toledo-Flores.


1 New York v. Miln, 36 U.S. 102 (1837).

2 7 How. 283 (1849).

3 U.S. Supreme Court web docket sheet,>a

4 Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: 1998).

5 Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: 2005).

6 Benslimane v. Gonzales, No. 04-1339, slip op. at 1 (7th Cir. Nov. 30, 2005).

7 Fatin v. INS, 12 F.3d 1233, 1241 (3d Cir. 1993).

8 Id.

9 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

10 See, e.g., Thomas W. Merrill, “Chevron, The Nondelegation Doctrine, and Tobacco,” available at /administrativelaw/
(site last checked on April 8, 2006).

11 Cai Luan Chen v. Ashcroft, 381 F.3d 221, 223-224 (3rd Cir. 2004)(internal citations omitted).

12 341 F.3d 218 (3rd Cir. 2003).

13 Id. at 222 (internal citations omitted).

14 353 F.3d 225 (3rd Cir. 2003).

15 Id. at 227.

16 Id. at 227 – 228 (citing Renteria-Gonzalez v. INS, 322 F.3d 804, 812 (5th Cir. 2003).

17 Interview with former AILA National President Dale Schwartz, Esq., conducted on September 16, 2005.

18 457 U.S. 202 (1981).

19 A copy of the memorandum is available online at

20 Id. at 2.

About The Author

Christopher W. Helt, Esq. is an immigration attorney practicing in Chicago, Atlanta and Memphis. He concentrates in deportation/removal defense and litigation of immigration issues in federal court.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.