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Elena Kagan on Immigration
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DACA protect childhood immigrants from deportation
The Supreme Court blocked the Trump administration's attempt to end Deferred Action for Childhood Arrivals, an Obama-era program that protects immigrants brought to the US as children from deportation. After Trump came into office, the administration
announced the program had been created "without proper authority" and that DACA would be phased out. Federal courts said the administration had acted arbitrarily when phasing out the program. The courts pointed to the administration's thin
justification--reasoning Roberts and the Supreme Court eventually agreed with.
The 5-4 ruling was written by Chief Justice Roberts and joined by Kagan, emphasizing that the administration failed to provide an adequate reason to justify ending the
DACA program. Roberts wrote in the majority opinion. "'The wisdom of those decisions 'is none of our concern.' We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action."
Source: CNN on 2020 Scotus ruling on DACA
, Jun 18, 2020
Recused herself from Arizona immigration case
Two of the 28 cases from which Elena Kagan was recused ended with the Court deadlocked four to four after briefing and oral argument. There was speculation that Justice Kagan's recusal may have played a role in the outcome of another important case
last Term, involving Arizona's controversial immigration law, S.B. 1070. On June 25, the Court, by a vote of five to three, ruled that three of the four provisions at issue in the case were preempted by federal law.
The deciding vote in Arizona v. United States arguably belonged to the Chief Justice, who joined Justice Kennedy and the Court's more liberal members, Justices Ginsburg, Breyer and Sotomayor.
Several commentators were surprised by the Chief Justice's vote and suggested that he may have joined the majority to avoid having the case end in a tie vote.
Source: ScotusBlog.com, "SCOTUS for law students"
, Oct 9, 2012
Let deported immigrants appeal based on bad legal advice
As Solicitor General, Kagan issued an amicus brief in Padilla v. Kentucky. In the brief, the government agreed with Padilla that the KY Supreme Court erred in holding that a criminal defense lawyer giving incorrect advice about the immigration
consequences of the plaintiff's plea is not a sufficient reason to reopen a case. In other words, the Kentucky court argued that Jose Padilla, a lawful permanent resident who was charged with drug offenses, could not withdraw his guilty plea even though
his lawyer gave him bad immigration advice.According to Kagan, an attorney giving immigration advice "has a duty to avoid doing so incompetently."
"Professionally incompetent advice," according to Kagan, "can support an ineffective-assistance
claim." However, Kagan agreed that Padilla could not withdraw his own plea because the overwhelming evidence against him suggested "that a rational defendant would have pleaded guilty even after receiving correct information."
Source: Andrea Nill Sanchez on Think Progress, "Immigration"
, May 13, 2010
Let deported immigrants appeal based on administrative error
Kagan weighed in on Kucana v. Holder, a case aimed at resolving the question of whether courts have jurisdiction to review decisions made by the Board of Immigration Appeals (BIA). In her amicus brief, Kagan agreed with petitioner
Agron Kucana (an Albanian facing deportation who originally was ordered deported because he had overslept and missed his asylum hearing), that judicial review is available in such cases. Yet, Kagan still recommended that the Court deny review of
Kucana's case, arguing that his claim was baseless on the merits. Kagan did not support the specific case of the immigrant petitioner, but she did side with his underlying argument.
This is significant because administrative errors can often lead to a wrongful deportation that puts an asylum applicant in perilous danger.
Source: Andrea Nill Sanchez on Think Progress, "Immigration"
, May 13, 2010
Page last updated: Mar 21, 2022