Judge Ketanji Brown Jackson’s Immigration Rulings
FAIR Take | March 2022
President Joe Biden nominated federal appeals court Judge Ketanji Brown Jackson to the U.S. Supreme Court in late February, beginning the confirmation process to serve on the country’s highest court. While Judge Jackson has a limited tenure as a federal judge, with seven years on the U.S. District Court for the District of Columbia and 8 months on the U.S. Court of Appeals for the District of Columbia Circuit, Judge Jackson has written four important decisions regarding immigration issues. Although her rulings on immigration have yielded mixed results, her opinions provide some insight and concern regarding her legal philosophy.
In Make the Road New York v. McAleenan, Judge Jackson issued a preliminary injunction to stop the Trump administration from expanding its use of Expedited Removal to the temporal and geographic bounds explicitly permitted by statute. Historically, the Department of Homeland Security (“DHS”) has only applied Expedited Removal procedures (which fast track hearings of recent illegal border crossers) to those who have entered the United States within the prior 14 days and have been encountered by an immigration officer within 100 air miles of the border. To strengthen immigration enforcement in the interior of the United States and address serious resource constraints caused by the mounting border crisis, the Trump administration expanded its application of Expedited Removal in 2019 to aliens who have entered the United States within two years of apprehension, consistent with the perimeters explicitly authorized by law.
Judge Jackson ruled against the Trump administration, holding that DHS likely violated the Administrative Procedures Act (“APA”) by skipping steps to justify the policy change and that it failed to properly consider the policy’s impact, including failing to seek public input. While this ruling was ultimately reversed by the D.C. Circuit, Judge Jackson’s expansive reading of the APA suggests a willingness to rule against agencies acting pursuant to explicit statutory authority. Similarly expansive readings of the APA have been applied by the Supreme Court to strike down DHS’s effort to end the Deferred Action for Childhood Arrivals (“DACA”) program, despite DHS’s determination that the program directly violated numerous federal immigration and administrative procedure statutes.
In Kiakombua v. Wolf, Judge Jackson struck down a U.S. Citizenship and Immigration Services (“USCIS”) asylum officer training material (called the “Credible Fear Lesson Plan”) that the Trump administration amended to clarify existing case law and update to account for new changes in binding court precedent. Here, Judge Jackson disagreed with Trump’s interpretation of certain elements of the training, overriding the agency’s policy decisions over matters where there was unsettled law. FAIR worries that this ruling also suggests Judge Jackson’s willingness to substitute her judgment for that of an agency charged with interpreting the statute in a manner that we believe is properly within the scope of the agency’s interpretative latitude.
Not all of Judge Jackson’s rulings, however, have supported the illegal immigration lobby’s agenda. In 2019, Judge Jackson dismissed a challenge, in Center for Biological Diversity v. McAleenan, contesting the border wall construction on environmental grounds. Judge Jackson ruled that the Secretary of Homeland Security had unfettered discretion to waive laws regarding border barriers in the case’s location and that there was no basis for the plaintiffs’ lawsuit.
Additionally, in Las Americas Immigrant Advocacy Center v. Wolf, Judge Jackson upheld the Prompt Asylum Claim Review (“PACR”) and Humanitarian Asylum Review Process (“HARP”), created by the Trump administration. These programs prioritized certain recent illegal border crossers’ asylum screenings, which required these aliens to wait in CBP facilities rather than U.S. Immigration and Customs Enforcement (“ICE”) detention facilities. As a result, PACR and HARP shortened the amount of time affected aliens had to prepare for their credible fear interviews. In some cases, these process changes limited aliens’ ability to access to legal counsel. Here, Judge Jackson recognized that DHS did not violate the APA, any provision of the Immigration and Nationality Act (“INA”), its implementing regulations, or any other statute of convention concerning asylum.
FAIR notes that in all of these decisions, Judge Jackson has declined to use the term “alien” in the context of interpreting immigration law. Unless quoting another source, Judge Jackson opts for the less precise word “noncitizen,” which is both imprecise and improper in the legal context. Judge Jackson’s refusal to use the term suggests a willingness to allow politics and political pressure to influence her judgment.
Finally, it is important to note that on the U.S. District Court for the District of Columbia, Judge Jackson was bound by circuit and Supreme Court and often appropriately qualified her decisions on that basis. As a Supreme Court Justice, Judge Jackson would have significantly greater power to set precedent.
Questions Americans Should Be Asking Judge Jackson
- Will the Justice read the law in an impartial manner as written by Congress?
- Will the Justice apply the law in an impartial manner?
- Will the Justice defer to agency expertise when there is reason to adhere to a longstanding interpretation of the law?
- Will the Justice avoid substituting her judgment for that of Congress or the relevant agency(ies) where there is a conflict or disagreement among the circuits?