Rosenstein’s Call for New Immigration Court Called Unrealistic (1)

Dec. 7, 2018, 6:15 PM; Updated: Dec. 7, 2018, 8:32 PM

Deputy Attorney General Rod Rosenstein called for the creation of a court to handle all immigration appeals, but legal scholars question its premise and consider it politically unrealistic.

Rosenstein wrote in the Wall Street Journal on Friday that “inconsistent rulings by the 12 federal appellate courts have created a hodgepodge of jurisprudence” where immigrants may get different results in different circuits.

Illegal immigration is a hot-button political issue that the Trump administration has aggressively pursued on the policy front and in court. For instance, Trump has criticized the U.S. Court of Appeals for the Ninth Circuit in particular for ruling against the federal government in high-profile immigration controversies.

The Ninth Circuit is “the jurisdiction most willing to grant lengthy temporary stays of removal” and heard about 56 percent of appeals from the Justice Department’s Board of Immigration Appeals in 2018, Rosenstein said.

The proposal by Rosenstein, a frequent foil of the president’s over Special Counsel Robert Mueller’s Russia probe, would allow Trump to add more appellate judges to his record-setting total if the plan ever came to fruition.

‘Uniformity Impossible’

JoshBlackman, a professor at South Texas College of Law Houston who specializes in constitutional law, said Rosenstein’s idea makes sense “as a policy matter.”

The U.S. Constitution “calls for a ‘uniform’ system of naturalization,” he said. “That system can be ‘uniform’ when the executive branch decides how to enforce the law.”

But once immigration cases are challenged at the appellate level, “uniformity is impossible,” Blackman said.

Regardless of the proposal’s logic, it’s a “non-starter with a Democratic House of Representatives,” which won’t “allow President Trump to staff an entirely new court to decide immigration cases,” he said.

Another Proposal

Another law professor acknowledged that the current system for immigration cases is problematic, but disagreed with the proposal.

Rosenstein hasn’t identified the “central problem” with the current structure for immigration cases, which is that appeals courts are often burdened with factual disputes, when they should be focused on questions of law, Arthur D. Hellman told Bloomberg Law.

Hellman suggested creating a court, sitting in different areas of the country, to handle the review of factual questions. The courts of appeals would then focus solely on questions of law, Hellman, a professor at the University of Pittsburgh law school who focuses on federal courts, said.

Premise Questioned

Though Rosenstein complained about the lack of uniformity, allowing different circuits to decide on questions of law has an important benefit, Hellman said.

The U.S. Supreme Court benefits from the “percolation” of complex questions of law, like those often found in immigration cases, in the appeals courts, he said.

The court can take up a case after seeing how different circuits explored and considered such issues, Hellman said.

(adds context on trump and immigration)

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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