Bench Memos

Law & the Courts

Judge Kethledge Faithfully Applies Immigration Laws

Judge Raymond Kethledge (Wikimedia Commons)

Judge Raymond Kethledge is a committed originalist and textualist, which means he shows no favoritism to either side in any case, and instead applies the law as it is written. Judge Kethledge uses this sound approach to judging — the same approach used by Justices Antonin Scalia and Neil Gorsuch — in every case that comes before him. Judge Kethledge has also criticized judicial activism, which is when judges insert their own policy views into their decisions rather than applying our laws and Constitution as they were written and understood at the time they were enacted.

Importantly, when faced with questions involving immigration law, Judge Kethledge takes the same approach he takes in every other case — he faithfully interprets and applies the laws as written and adopted by the politically accountable branches. And if those laws are not as stringent as some may prefer, it speaks to the need to address the laws themselves — a need that must be addressed by the legislative and executive branches, not the judiciary.

Judge Kethledge has adjudicated nearly 120 immigration cases during his decade on the Sixth Circuit. In every one, Judge Kethledge applied the same rigorous textualism he applies in every case that requires statutory interpretation. And that approach required him to affirm the Board of Immigration Appeals in 97 percent of those cases.

Interpreting and applying immigration laws faithfully sometimes means upholding the removal of immigrants despite compelling or even heartwrenching personal stories. In these cases, too, Judge Kethledge understands that his job is to follow the law, not to decide which side deserves more empathy. That is what a good judge should do. In Mora v. Holder, for example, Judge Kethledge confronted an immigrant who had entered the United States at age 14 and overstayed his visa, but then went on to be a productive member of the community for 16 years. Judge Kethledge remarked that, were the man a citizen, “we would call him a model one.” But Judge Kethledge nonetheless recognized that the law did not allow the court to grant the requested relief and therefore ruled for the government. Similarly, in Ba v. Holder, the record strongly suggested that the immigrant had been subjected to mutilation in her home country. But the immigrant, who claimed that her original immigration attorney was deficient, failed to file a motion to reopen her removal proceedings within 90 days of the entry of her final order of removal, as required by the Immigration and Nationality Act. As a result, Judge Kethledge concluded, the courts had no lawful basis to grant her relief.

Other times, interpreting and applying immigration laws faithfully means upholding the deportation of immigrants who have been dishonest in their dealings with the United States or have otherwise committed crimes. In those cases, U.S. immigration law frequently imposes harsh consequences, and Judge Kethledge does not shy away from his duty to enforce those mandates. In Pilla v. Holder, Judge Kethledge thoughtfully applied the relevant provision in the statute — which penalized the immigrant for her conviction of a crime involving “deceit” — and gave the statute’s text its ordinary meaning, rejecting the narrower reading advocated by the immigrant. In Khalil v. Holder, Judge Kethledge carefully and thoroughly analyzed the immigrant’s entire course of dealing with the U.S. government in order to explain why his story about fearing persecution was inconsistent and not credible. These are just a few of over a hundred cases in which Judge Kethledge faithfully applied the law and found that the law required ruling against the immigrant.

Moreover, applying the law faithfully — rather than seeking to impose one’s own policy preferences — means not twisting the law to reach a favored result in either direction, and instead respecting the Constitution and laws of the United States. That is exactly how Judge Kethledge handled these cases.

In Van Don Nguyen v. Holder, for example, Judge Kethledge joined an opinion holding that grand theft auto was not an “aggravated felony” because the statute defined “aggravated felony” as a “crime of violence,” and grand theft auto — although a serious crime — is not a violent crime under Supreme Court precedent. Only an activist judge could have reached a different conclusion. In Patel v. USCIS, Judge Kethledge ruled that an immigrant was permitted to bring his suit — not necessarily to prevail, but just to have his claim heard in court. The government wanted to throw the case out based on a legal doctrine called prudential standing, but Judge Kethledge recognized that he was bound by the Supreme Court’s holding that prudential standing is not “demanding” and is relatively easy to satisfy. Here again, Judge Kethledge knew that his obligation as a lower-court judge was to respect the Supreme Court’s precedent.

In sum, Judge Kethledge approaches immigration cases the same way he approaches every case: by focusing on the ordinary meaning of the laws that were enacted by the politically accountable branches, without fear or favor. That is what Justice Scalia did, and that is what Justice Gorsuch has done. Judge Kethledge has done, and will do, the same.

Roger Meyers — Roger Meyers clerked for Judge Kethledge from 2009 to 2010, and now practices law in Troy, Mich., at Bush Seyferth & Paige, PLLC, a firm in which Judge Kethledge was a founding partner in 2003.

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