Charles Roth

[Charles Roth @ChuckRothNIJC]

SupCt oral argument (live online!) about to begin in Sanchez. https://t.co/T4WnBEgchv.
@nijc was proud to join with @AILANational and @afsc_org in filing this amicus brief https://t.co/zdlflo0rwl

[Charles Roth @ChuckRothNIJC]

Immigrants were disproportionately victims of the Supreme Court’s shadow docket the past four years, but only one member of @JoeBiden's Supreme Court reform panel (Cristina Rodríguez) is even remotely connected to the immigrant rights movement. @NIJC
https://t.co/Jq4ewZ5EQ1

[Charles Roth @ChuckRothNIJC]

SupCt granted cert on legality of unauthorized border wall and making asylum-seekers remain in Mexico, beyond statutory authority. https://t.co/qSsF8UCWP7 Common thread: SupCt greenlights acts of doubtful legality- nationwide injunctions far less dangerous than illegal govt acts!

[Charles Roth @ChuckRothNIJC]

It seemed that some justices were swayed by the practical args made in the amicus of @ImmDefense, @nijc, @the_ILRC, @NIPNLG, and @AILANational - with thanks for excellent work done by the Stanford Immigrants' Rights Clinic and @JSJayashri. https://t.co/FwzI5UIzmC

[Charles Roth @ChuckRothNIJC]

Oral argument about to begin in Pereida v. Barr, live audio here: https://t.co/WjeAT3MpyN. A link to briefs can be found here: https://t.co/XkF16UJaQ0

[Charles Roth @ChuckRothNIJC]

My guess: Breyer, Sotomayor, and Kagan seemed convinced by Petitioner's argument. Other justices (Alito, Gorsuch) doubted that categorical approach should apply (Govt asked SupCt to reserve). Kavanaugh focused on practical import. Looks to be 5-3, or splintered.

[Charles Roth @ChuckRothNIJC]

Rebuttal: efficiency concerns overstated, many circuits have this rule - govt has not substantiated this argument by pointing to any particular problems

[Charles Roth @ChuckRothNIJC]

Rebuttal: I didn't hear any response to practical question, no answer to how noncitizen could force something to be recorded when it's just checking a box on a computer

[Charles Roth @ChuckRothNIJC]

Rebuttal (contd): citing Matter of AGG, Matter of SK require govt to make full prima facie case

[Charles Roth @ChuckRothNIJC]

Pet rebuttal: Congress passed two provisions, the term conviction embraces least-acts presumption. 2d is Real ID. The provisions are not at war. Govt produced the documents, that's what the govt does because it bears an initial burden to show disqualifying offense.

[Charles Roth @ChuckRothNIJC]

SG conclusion: Petitioner trying to retrofit, statute puts burden onto alien. Congress' judgment is compatible with categorical, if there's any tension it should be resolved in favor of statute

[Charles Roth @ChuckRothNIJC]

Kavanaugh: but this isn't taking away exec authority to deny, it's just taking away categorically ineligible. Ans: even before IIRIRA, Congress wanted these eligibility rules to be applied strictly. Esp for alien who had every incentive and opportunity to make a record

[Charles Roth @ChuckRothNIJC]

Kavanaugh: he lived here for decades, wife and kids, had a fake SSN - seems a thin reed to make someone categorically ineligible. With minor offense, not surprising that records are thin. Ans: we're only talking about noncitizens who are removable already

[Charles Roth @ChuckRothNIJC]

Kavanaugh: seems to make sense to see how it works in practice. Is this a typical case? Ans: unusual that noncitizen says he can't produce docs showing what part he pled to. This case illustrates why it makes sense to put burden

[Charles Roth @ChuckRothNIJC]

J Kavanaugh: I want to broaden it out. You're saying he's categorically barred. But executive could deny anyway. Ans: yes

[Charles Roth @ChuckRothNIJC]

Gorsuch: is contract interpretation factual or legal? Ans but it's like what is the contract signed? Antecedent question

[Charles Roth @ChuckRothNIJC]

J Gorsuch: statute requires noncitizen to provide facts. Ans: forms require... Gorsuch: I'm talking about the statute. Ans: required to follow forms

[Charles Roth @ChuckRothNIJC]

J Gorsuch: nothing compels Shepard. Ans: What if docs don't exist? 1229a(c)(4)(B) says that if the IJ finds otherwise credible, noncitizen must provide corroboration unless unavailable. Noncitizen provides sworn testimony about convictions

[Charles Roth @ChuckRothNIJC]

Kagan: you agree that if indivisible statute, burden wouldn't apply? Ans: yes. Q: isn't modified categorical approach just a tool to apply categorical approach? If it's just a tool, why should our basic approach change? Unless we're certain that crime disqualifies

[Charles Roth @ChuckRothNIJC]

Kagan: let's say it's a contract case. In one sense, it's a factual question, but when we look to contract to see what I agreed to, it's a question of law, we're doing contract law. In a contract, what did I agree to, look to legal doc, we treat it as a question of law

[Charles Roth @ChuckRothNIJC]

J Kagan: I understand that you don't think question of law is affected by burden? Ans: we don't think least acts presumption affected by burden