Non-Citizen Rights Deprivations: A Constitutive Rhetoric Analysis Of Patel V. Garland

• Pages: 385-400
• Date: 01 April 2024
• Published date: 01 April 2024
• Author: Thomas de Xavier

NON-CITIZEN RIGHTS DEPRIVATIONS:

A CONSTITUTIVE RHETORIC ANALYSIS OF

PATEL V. GARLAND

THOMAS DE XAVIER*

TABLE OF CONTENTS

INTRODUCTION ......................................... 386

I. PATEL V. GARLAND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386

II. WHITE’S CONSTITUTIVE RHETORIC ....................... 388

III. CONSTITUTIVE RHETORIC ANALYSIS OF PATEL V. GARLAND.... .... 390

A. The Inherited Language......................... 390

1. The Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390

a. The Inf‌luence of Article III in the Working

Culture of Patel........................ 390

b. The Presence of Congress’ Immigration Plenary

Powers within the Working Culture of Patel . . . . 391

2. The Immigration and Nationality Act ............... 393

3. The Precedents Informing the Values of Jurisdictional

Bars in Patel.................................... 394

B. The Art of Text: Rhetorical Reformation of the Sources

Inf‌luencing Patel .............................. 395

1. Justice Barrett’s Article III and Congressional Powers

Framing ........................................ 395

2. Justice Barrett’s Expansionary Reconstitution of the

Statute ......................................... 397

3. Exceptions Do Not Make the Rule: Justice Barrett’s

Use of Precedents................................ 398

C. The Creation of Rhetorical Communities . . . . . . . . . . . . . 398

*© 2024, Thomas de Xavier.

385

IV. CONCLUSION ...................................... 400

INTRODUCTION

On May 16, 2022, the U.S. Supreme Court eviscerated a fundamental fail-

safe for reviewing bureaucratic errors made by an overburdened immigration

court system in Patel v. Garland.

1

Patel v. Garland, 596 U.S. 328, 364 (2022) (Gorsuch, J., dissenting) (discussing the consequences

of the holding by the majority in Patel); See U.S. Immigration Courts See A Signif‌icant and Growing

Backlog, GOV’T ACCOUNTABILITY OFFICE (Oct. 19, 2023), https://perma.cc/W6PD-PXHK (discussing

more than two million pending cases in U.S. immigration courts tripling the backlog since 2017).

The facts ref‌lect the common experience

which many noncitizens face: a permanent resident applicant claimed to have

made a mistake by checking a box on a state-issued form that identif‌ied him

as an American citizen.

2

Because of this, the immigration courts deemed him

untrustworthy and ordered his removal.

3

Upon reaching the Supreme Court,

it held that federal courts are prohibited from reviewing any factual determi-

nations made by the Immigration Courts for discretionary relief,

4

even when

the factual challenges raised were probative to resolving the underlying legal

question.

5

The result in Patel greatly diminished the available procedural

rights for noncitizens.

This paper seeks to uncover the rhetorical roots in Patel v. Garland that

have intensif‌ied rights deprivation for noncitizens. Part I expounds upon the

case of Patel v. Garland and presents Justice Barrett’s language in the major-

ity. Part II outlines constitutive rhetoric theory, which serves as the analytical

framework used in this note to evaluate Justice Barrett’s rhetoric. The frame-

work is designed to ref‌lect law as rhetoric and reveal the communities spoken

to within its discourse.

6

Part III applies constitutive rhetoric theory to the

Patel decision. Finally, Part IV concludes with a discussion of the due pro-

cess deprivations which have been exacerbated by Justice Barrett’s rhetoric

in Patel.

I. PATEL V. GARLAND

In 1992, Pankajkumar Patel illegally entered the United States from India

with his wife, Jyostnaben, and two of their sons.

7

After entering the United

1.

2. Patel, 596 U.S. at 333.

3. Id. at 333–34 (discussing the Immigration Judge’s conclusions that Mr. Patel’s testimony was not

credible and he intentionally deceived Georgian state off‌icials); Id. at 349–50 (Gorsuch, J, dissenting)

(discussing the Immigration Judge’s inaccurate basis for f‌inding Mr. Patel justif‌iably had intent to deceive

state off‌icials”).

4. Id. at 330.

5. Id. at 335 (discussing the BIA interpretation of discretionary relief eligibility bar applicable to Mr.

Patel which included subjective intent or the element relevant to the factual determinations seeking to be

reviewed).

6. James Boyd White, Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life, 52

UNIV. OF CHI. L. REV. 684, 684 (1985).

7. Petition for Writ of Certiorari at 8, Patel, 596 U.S. 328 (2022) (No. 20-979).

386 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 38:385