With McTurtle’s leadership having a Mr. Wizard to call on would be nice.
Here is ScotusBlog on Hardiman on immigration
In immigration cases, Hardiman has generally affirmed – in fairly unremarkable unpublished opinions – decisions going against noncitizens. In a published case, Cazun v. Attorney General, Hardiman concurred in a ruling against a Guatemalan woman who was deported but then tried to return to the United States and claim asylum after she was threatened, tortured and sexually assaulted by the head of a major drug-trafficking gang. The asylum officer agreed that the woman was credible, but concluded that she was ineligible for asylum because the Board of Immigration Appeals had interpreted the Immigration and Nationality Act to bar asylum for a noncitizen who was previously removed from the United States and has had a removal order reinstated. (The woman was, however, eligible for other, less desirable forms of relief, which (unlike asylum) would not give her a potential path to U.S. citizenship or prevent her from being sent to a country other than Guatemala.) The majority concluded that it should defer to the BIA’s interpretation of the INA, but Hardiman wrote separately to emphasize that the INA was not “silent or ambiguous” on the question, a key criterion for agency deference; instead, he would “enforce the statute as written rather than defer to the agency’s interpretation.”
But Hardiman has not hesitated to vacate decisions by the Board of Immigration Appeals when he believes that the board has erred. In Valdiviezo-Galdamez v. Attorney General, for example, Hardiman was part of a panel that ruled in favor of an asylum applicant, who alleged that he had come to the United States to avoid being involuntarily recruited into a violent gang in his home country of Honduras. The case centered on whether the applicant was being persecuted because of his “membership in a particular social group” within the meaning of federal immigration laws. The panel sent the case back to the BIA, reasoning that two requirements – “social visibility” and “particularity” – imposed by the BIA on asylum-seekers were inconsistent with the board’s earlier decisions. Hardiman concurred in the judgment for the asylum-seeker. He would have held that the BIA can interpret the term “particular social group” “to include whatever requirements it sees fit.” But, he cautioned, the BIA must also acknowledge that the requirements are a departure from its previous position and explain why it is making the change. Here, he observed, “[a]nnouncing a new interpretation while at the same time reaffirming seemingly irreconcilable precedents suggests that the BIA does not recognize or is not being forthright about, the nature of the change its new interpretation effectuates. It also unfairly forces asylum applicants to shoot at a moving target.” And in Di Li Li v. Attorney General, Hardiman joined an opinion that remanded the case to the BIA for reconsideration of a motion to reopen based on changed circumstances when the asylum applicant had become Christian and the BIA had not addressed his argument “as to how conditions have worsened over time” for Christians in China.
Several of the decisions in which Hardiman has participated have made their way to the Supreme Court on the merits. In Florence v. Board of Chosen Freeholders, Hardiman wrote for a divided panel in a challenge to a New Jersey jail’s policy of strip-searching arrestees before they join the facility’s general population. The majority reversed the district court’s ruling in favor of the arrestee. Hardiman concluded that, “balancing the Jails’ security interests at the time of intake before arrestees enter the general population against the privacy interests of the inmates,” the strip-search procedures are “reasonable.” By a vote of 5-4, the Supreme Court affirmed that ruling.