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Immigration

How will Trump's Supreme Court nominee rule on immigration?

Judge Neil Gorsuch has ruled in favor of undocumented immigrants, but experts say his record is too thin to draw any conclusions.
3 Feb 2017 – 3:32 PM EST

Supreme Court nominee Neil Gorsuch is a conservative picked by a president who terrifies undocumented migrants. But Gorsuch's record does not show a tendency to rule against immigrants.

In fact, Gorsuch ruled in favor of undocumented immigrants in at least one case.

He has spent the past 10 years on the 10th District Court of Appeals, based in Colorado and with jurisdiction over a big part of the Southwest, including the border state of New Mexico.

Gorsuch sided with the court's majority last year when it ruled in favor of Hugo Gutiérrez-Brizuela, an undocumented immigrant who challenged a ruling by the Justice Department's Board of Immigration Appeals.

The plaintiff had entered the United States illegally and was affected by a law that forced him to leave the country and spend 10 years abroad before he could request a change to his immigration status.

An enigma

Some experts who know Gorsuch's judicial record have tried to reassure liberals who fear he will be an intransigent conservative on immigration and other issues.

But others say he's an enigma, in part because it is easier to measure judges from their rulings on issues such as abortion and religious freedoms – where personal ideology carries more weight – than many-sided issues such as immigration.

Jon Gould, a professor of constitutional rights at American University, told Univision News that Gorsuch has no record of opinions on controversial issues, and that's probably why Trump picked him for the Supreme court.

“He meets the profile of Supreme Court nominees over the past 20 years because his record has few rulings on controversial issues, which will make his confirmation easier because the opposition party will have few reasons to block him,” Gould said.

Gorsuch must be confirmed by the Senate, where Republicans have a majority. Democrats have threatened to vote against him, especially because of his rulings defending the rights of corporations and opposing women's right to contraception.

Many organizations that favor women's reproductive rights and the LGBT community are opposed to Trump's choice, arguing that womens' rights to control their own bodies will be at risk if Gorsuch is approved.

Part of the rejection of Gorsuch comes out of the Democrats' opposition to Trump and rancor against the Republican rejection of President Barack Obama's nominee for the Supreme Court, Merrick Garland.

Gorsuch has been described as a “textualist” who follows the letter of the constitution rather than its modern-day spirit – same as the late Supreme Court Justice Antonin Scalia and a posture that usually leads to conservative votes.

One issue in which his posture could affect immigration cases involves challenges to the law that anyone born in the United States is a U.S. citizen – even the children of undocumented migrants. Trump has said they should not be citizens.

“If Gorsuch is a strict textualist, he should accept what the 14th Amendment to the constitution says on the right to citizenship, because it clearly affirms that everyone born in the United States is a U.S. citizen,” said George Washington University professor Paul Schiff Berman. “That would suggest that if Trump tries to do something against them, a strict textualist would tell him, 'You can't do that.'”

Another hint of how Gorsuch will vote on the Supreme Court are his past rulings to limit the powers of the executive branch, and especially the agencies in charge of immigration issues. Schiff Berman said the Gutierrez-Brizuela alone is not enough to judge.

“Based on this one case, it's difficult to know whether Gorsuch will be blindly acquiescent to any agency of the Trump administration,” he told Univision Noticias.

It remains to be seen “whether he will be more deferential when it comes to the Trump administration. If he was not willing to give way to what the Department Homeland Security or the president wanted on immigration under Obama, then he should not give way now,” the professor said. “That's when we'll really see his principles.”

Gorsuch is likely to be voting on immigration soon if he's confirmed. Although there are no significant immigration cases pending before the Supreme Court for 2017, it may likely soon receive appeals against Trump's executive order to temporarily ban arrivals from seven majority-Muslim countries, Gould said.

If the justices agree to hear those cases, the Supreme Court could rule on them this year, said Gould.

“It will be very interesting to see his decision, whether to agree to consider the appeals or the final rulings on the cases,” said Gould. Four of the nine justices must first agree to hear the cases. “That would tell us a lot more more about his future jurisprudence.”

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