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March 17, 2017

Professor McAllister on the Puzzle of California's Climate Leadership

Professor Lesley McAllister recently blogged over at Environmental Law Prof Blog about last week's successful environmental law symposium at King Hall.

Here's an excerpt:

Last Friday, UC Davis School of Law's Environmental Law Society and the Environs journal held their 2017 Symposium, The Future of Climate Change Law & Policy: View to 2030.  It was an excellent event, with many great speakers and terrific attendance -- big congratulations to the student organizers: Sophie Wenzlau, Dane Jones and Jamie Katz!  Panels dealt with California's new SB32 (which updates AB32 by writing into law California's 2030 goal of reducing its emissions to 40% below 1990 levels by 2030); climate change and agriculture; zero emissions vehicles; and California's leadership in international climate law. 

A couple speakers on the final panel about international connections couldn't come at the last minute, so I and several of my colleagues were asked to step in. The panel went well, but I had one of those experiences that one should not have after more than 10 years of teaching and presenting on panels - I spoke for 9 (out of 10) minutes without getting to the point!  Of course, we all hate when professors do this!  I can only offer the excuse that I am out of practice, and I have been through a ridiculous amount of cancer treatment in the past three and a half years. But it was a shame because I really had some important knowledge that I wanted to convey, and I bombed it.

This blog post is my attempt at a re-do.  The very interesting and timely question that I wanted to address was how and why California has made so many international linkages in climate policy.  Everyone knows that California has been a climate change leader within the United States. But it may be forgotten that California has also been extremely active internationally, working with other subnational jurisdictions throughout the world.

To read the complete blog entry by Professor McAllister, see "The Puzzle of California's Climate Leadership" at Environmental Law Prof Blog.

 

March 17, 2017

Chief Justice of California Tani Cantil-Sakauye '84 Objects to Immigration Enforcement Tactics at California Courthouses

Cross-posted from Immigration Prof Blog.

The Chief Justice of California Tani Cantil-Sakauye has expressed concerns with federal immigration tactics at California courthouses in the following letter:

Dear Attorney General Sessions and Secretary Kelly:

As Chief Justice of California responsible for the safe and fair delivery of justice in our state, I am deeply concerned about reports from some of our trial courts that immigration agents appear to be stalking undocumented immigrants in our courthouses to make arrests. 

Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country's immigration laws.

Our courts are the main point of contact for millions of the most vulnerable Californians in times of anxiety, stress, and crises in their lives. Crime victims, victims of sexual abuse and domestic violence, witnesses to crimes who are aiding law enforcement, limited-English speakers, unrepresented litigants, and children and families all come to our courts seeking justice and due process of law. As finders of fact, trial courts strive to mitigate fear to ensure fairness and protect legal rights. Our work is critical for ensuring public safety and the efficient administration of justice.

Most Americans have more daily contact with their state and local governments than with the federal government, and I am concerned about the impact on public trust and confidence in our state court system if the public feels that our state institutions are being used to facilitate other goals and objectives, no matter how expedient they may be.

Each layer of government - federal, state, and local - provides a portion of the fabric of our society that preserves law and order and protects the rights and freedoms of the people. The separation of powers and checks and balances at the various levels and branches of government ensure the harmonious existence of the rule of law.

The federal and state governments share power in countless ways, and our roles and responsibilities are balanced for the public good. As officers of the court, we judges uphold the constitutions of both the United States and California, and the executive branch does the same by ensuring that our laws are fairly and safely enforced. But enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair. They not only compromise our core value of fairness but they undermine the judiciary's ability to provide equal access to justice. I respectfully request that you refrain from this sort of enforcement in California's courthouses.

-Chief Justice Tani G. Cantil-Sakauye

March 17, 2017

Comic by Late King Hall Professor Keith Aoki Is Completed

Cross-posted from Duke's James Boyle at The Public Domain.

It is done! We are delighted to announce the publication of our new comic book — Theft: A History of Music, a graphic novel laying out a 2000 year long history of music from Plato to rap.

The comic is by James Boyle, Jennifer Jenkins and the late Keith Aoki. It is available for purchase as a remarkably handsome 8.5 x 11” paperback, and for free download under a Creative Commons license. If you buy the book, 50% percent of the royalties will go to support Duke’s Center for the Study of the Public Domain.

This comic is not just about music.  It is about musical borrowing, and the attempts to forbid or prevent it.  Again and again there have been attempts to police music; to restrict borrowing and cultural cross-fertilization. But music builds on itself.  To those who think that mash-ups and sampling started with YouTube or the DJ’s turntables, it might be shocking to find that musicians have been borrowing – extensively borrowing – from each other since music began. Then why try to stop that process? The reasons varied. Philosophy, religion, politics, race – again and again, race – and law. And because music affects us so deeply, those struggles were passionate ones. They still are.

The history in this book runs from Plato to Blurred Lines and beyond. You will read about the Holy Roman Empire’s attempts to standardize religious music with the first great musical technology (notation) and the inevitable backfire of that attempt. You will read about troubadours and church composers, swapping tunes (and remarkably profane lyrics), changing both religion and music in the process. You will see diatribes against jazz for corrupting musical culture, against rock and roll for breaching the color-line. You will learn about the lawsuits that, surprisingly, shaped rap. You will read the story of some of music’s iconoclasts—from Handel and Beethoven to Robert JohnsonChuck BerryLittle RichardRay Charles, the British Invasion and Public Enemy.

To understand this history fully, one has to roam wider still – into musical technologies from notation to the sample deck, aesthetics, the incentive systems that got musicians paid, and law’s 250 year struggle to assimilate music, without destroying it in the process. Would jazz, soul or rock and roll be legal if they were reinvented today? We are not sure.  Which as you will read, is profoundly worrying because today, more than ever, we need the arts.

All of this makes up our story. It is assuredly not the only history of music.  But it is definitely a part – a fascinating part – of that history. We hope you like it.

March 16, 2017

"Crisis Migration" Conference and Related Events

Today brings a wealth of immigration-related events to King Hall. The Crisis Migration conference, co-sponsored by the School of Law and the Max Planck Institute, among others, has brought together leading scholars from around the world.

I am participating in the panel on "Crisis Migrants and Public Welfare Policies as Immigration Enforcement: The United States." Other conference participants from King Hall include Professors Leticia Saucedo, Brian Soucek, and Rose Cuison-Villazor, as well as alum Jihan Kahssay and law students Sylvia Cunningham, Stephanie Medina, Sara Ehsani-Nia, and Kyle Edgerton.

In addition, during the lunch hour, the California International Law Center presented "Refugees in Europe and South Africa" by Ulrich Becker of the Max Planck Institute and Dean Letlhokwa George Mpedi of the law school at University of Johannesburg. In the afternoon, renowned immigration attorney and MacArthur fellow Margaret Stock spoke on "Refugees and National Security."

March 15, 2017

Speaking on Immigration Policy at the World Affairs Council

Tonight I will speak before the Sacramento chapter of the World Affairs Council on "Immigration Policy under the New Administration." The Council is a non-profit organization that strives to promote discourse on matters of global importance.

Here is the event synopsis: What does the recent White House executive order barring travel to the United States by citizens of seven Muslim-majority nations mean? Dean Kevin R. Johnson will discuss the order at length, touching on subjects including previously existing procedures for vetting refugees and immigrants, confusion among immigration officials regarding implementation of the order, what the future may hold for non-citizens seeking to travel in or out of the United States and the potential economic impacts.

The event takes place at the USC Price School State Capital Center in midtown Sacramento.

For more information, visit the World Affairs Council event page.

March 14, 2017

Dreyfous Lecture at Tulane Law

On Monday, I have the honor of delivering the Dreyfous Lecture on Civil Liberties and Human Rights at Tulane University Law School. The topic is "Immigration and Civil Rights in the Trump Administration," something I have been talking about a great deal lately.

According to the Tulane event page, "The George Abel and Mathilde Schwab Dreyfous Lecture on Civil Liberties and Human Rights, established in 1965, honors the founder of the Louisiana Affiliate of the American Civil Liberties Union and his wife, both of whom worked to end segregation and discrimination against African-Americans. Past lecturers have included some of the nation's most distinguished legal minds, such as Justice Ruth Bader Ginsburg, former Solicitor General Charles Fried and Obama administration Attorney General Eric Holder."

The lecture is scheduled for the afternoon of Monday, March 20, at Tulane University Law School in New Orleans.

March 1, 2017

Migrant Labor and Global Health Conference Brings International Experts to UC Davis

The Migrant Labor and Global Health (MLGH) Conference brings together a multidisciplinary group of scholars and scientists for two exciting days of exploration and debate on the interrelated issues of labor migration, occupational health, and economics.

International migration is a phenomenon that involves 244 million people worldwide, most of whom move in search of work and wellbeing. Migration is projected to increase in the future, related to geographic and economic disparities, climate change and political events, such that all nations must contend with the societal shifts that are brought about by human movement. Solutions to the challenge of migration must be multi-sector and coordinated.

The Conference serves as a platform to explore the multidisciplinary aspects of migration and their impact on health.

What

A multidisciplinary, international group of scholars and scientists will explore, debate and propose solutions to the interrelated issues of labor migration, occupational health, human trafficking and economics in a two-day conference at UC Davis. The event, gathering speakers from universities, nongovernmental organizations, government and the private sector, is jointly organized by the Migration Research Cluster and the Migration and Health Research Center at UC Davis.

Discussion topics include: "Immigration Law and Enforcement in the Trump Years," (Kevin R. Johnson, Dean, UC Davis School of Law); "Migration and Development: A Roadmap to a Global Compact," (Dilip Ratha, World Bank); and "Inflection Point! Immigration Policies in Advanced Industrial Societies in the Age of Trump," (Demetrios Papademetriou, Migration Policy Institute). More than 200 people are expected to attend.

When

Thursday-Friday, March 2-3; 9 a.m.-5 p.m. each day

Who

Speakers include from UC Davis, Giovanni Peri, professor of economics and director of the UC Davis Migration Research Cluster, and Dr. Marc Schenker, professor of medicine; National Public Radio's Tom Gjelten; and officials from the Centers for Disease Control and Prevention, National Institute for Occupational Health and Safety, and various migrant, labor, worker safety, refugee and health organizations as well as university scholars from throughout the world. The full schedule of speakers and topics as well as speakers' bios are available online. 

Where

UC Davis Conference Center

Background

International migration is a phenomenon that involves 244 million people throughout the world living outside their homeland at any given time. Most of them are migrating in search of work and well-being. Migration is projected to increase in the future, related to geographic and economic disparities, climate change and political events, such that all nations must contend with the societal shifts that are brought about by human movement.

February 28, 2017

Argument analysis: Justices divided on meaning of “sexual abuse of a minor” for removal purposes

Cross-posted from SCOTUSblog.

This morning, the Supreme Court heard arguments in Esquivel-Quintana v. Sessions, a case that arose from the U.S. government's effort to remove a lawful permanent resident for a "sex crime." Judging from today's argument, the justices appeared closely divided on the question of statutory interpretation before the court.

When Juan Esquivel-Quintana was 20 years old, he was convicted under California law for having consensual sex with his then-16-year-old girlfriend. An "aggravated felony" conviction generally requires mandatory removal of an immigrant from the United States and renders the immigrant ineligible for most forms of relief from removal. 8 U.S.C. § 1101(a)(43) defines an "aggravated felony" to include the "sexual abuse of a minor." Claiming that Esquivel-Quintana's conviction constituted an "aggravated felony," the U.S. government initiated removal proceedings against him, and the immigration court ordered him removed from the United States. The Board of Immigration Appeals dismissed his appeal from the removal order. Applying the Supreme Court's seminal 1984 decision in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc.,the U.S. Court of Appeals for the 6th Circuit deferred to the BIA's interpretation of "sexual abuse of a minor" and upheld the removal order. The dissent would have applied the rule of lenity, a judicial doctrine under which ambiguities in criminal law are resolved in favor of the defendant, to the interpretation of the criminal-removal provision in the immigration law and would have found that Esquivel-Quintana's conviction was not an aggravated felony.

The question before the Supreme Court is whether Esquivel-Quintana's conviction constitutes an "aggravated felony" as "sexual abuse of a minor" under U.S. immigration law. The case raises fascinating, and complex, questions about Chevron deference to an agency's reasonable interpretation of an ambiguous statute and about the rule of lenity that is generally applied to the interpretation of removal and criminal laws.

Arguing on Esquivel-Quintana's behalf, Jeffrey Fisher offered a multijurisdictional survey of state laws comparable to the California law to shed light on the meaning of "sexual abuse of a minor" in the immigration law. Justice Elena Kagan quickly began querying Fisher on his methodology for interpreting the statute. Fisher explained that it is appropriate to look at the laws of different states to discern the meaning of "sexual abuse of a minor" under federal law. Fisher later propounded an argument made in a "friend of the court" brief submitted by the Immigrant Defense Project - that there is a "readily apparent" federal definition of the phrase "sexual abuse of a minor." According to Fisher, the phrase refers to the offense of the same name described in the Sexual Abuse Act of 1986, as amended in 1996, the same year "sexual abuse of a minor" was added as an aggravated felony to the immigration statute. That federal offense applies only to minors under 16 and not to all forms of consensual sexual contact. Under that "readily apparent" federal definition, Esquivel-Quintana's conviction would not constitute an aggravated felony requiring removal.

At one point in Fisher's argument, Justice Samuel Alito intervened to ensure that Fisher was not asking the court to overrule Chevron, prompting Fisher to state emphatically "no, no, no." In response to another question from Alito, Fisher argued that the rule of lenity kicks in in favor of Esquivel-Quintana before Chevron deference can be applied. Chief Justice John Roberts seemed unconvinced, noting that "we've ... most often said that the rule of lenity is something you apply when you've already exhausted the normal tools of statutory interpretation," not "the other way around." Kagan sought to come to the rescue in search of "a middle ground," positing "a small exception to Chevron" in cases in which criminal laws come into play. Justice Stephen Breyer, a former administrative-law professor, did not buy this civil/criminal distinction.

Arguing on behalf of the federal government, Assistant to the Solicitor General Allon Kedem emphasized the need to employ traditional tools of statutory construction to interpret the reference to "sexual abuse of a minor" in the immigration law's definition of an aggravated felony. Kagan complained that the United States had pointed to few sources with which to interpret the statute. She nonetheless seemed to think that the statute was sufficiently clear to decide the case, although not in the way that the government wanted.

With respect to Chevron, Kedem claimed that the government would win even without Chevron deference, because the statute plainly included the conduct proscribed by the California law. Alito suggested an alternative approach to support the government's position - that the statute was in fact ambiguous and that through that ambiguity, Congress had afforded discretion to the attorney general to define the relevant term.

Justice Anthony Kennedy, who is often pivotal in close cases, asked Kedem a telling question about deference:

I can understand Chevron in the context of an agency that has special expertise in regulating the environment or the forest service or fisheries or nuclear power. Why   does the INS have any expertise on determining the meaning of a criminal statute?

Kennedy's question suggested that he may be skeptical about the applicability of deference doctrine to this kind of case.

Asked by Roberts about the role of the rule of lenity, Kedem characterized it as a rule of last resort, coming into play only if all other interpretive methods have failed, which, in the government's view, is not the case here.

Near the end of the argument, Justice Ruth Bader Ginsburg raised a question that arises in many criminal-removal cases. She stated that Esquivel-Quintana faces removal for a criminal offense that would not be a crime in the majority of states. With states moving toward decriminalization of marijuana possession and use, this kind of question will likely crop up even more frequently in the future.

In sum, the justices did not seem to have reached a consensus as to whether Esquivel-Quintana's crime constituted "sexual abuse of a minor" under the immigration laws. The justices' questions revealed the complicated interaction among the relevant statutory provisions; the high stakes of removal for lawful permanent residents, the complex state/federal issues involved, and the intersection of criminal and immigration law add to the difficulty and significance of this case. A decision is expected by the end of June.

February 21, 2017

Argument preview: Removal of an immigrant for "sexual abuse of a minor"

Cross-posted from SCOTUSblog.

Over the last few years, the Supreme Court has decided a number of criminal-removal cases. Next week, the justices will hear oral argument in another one, Esquivel-Quintana v. Sessions, which stems from the government's effort to remove a lawful permanent resident for a "sex crime."

The facts of the case sound like an episode of "Law and Order SVU." In 2000, Juan Esquivel-Quintana's parents lawfully brought him to the United States and settled in Sacramento, California. When he was 20 years old, Esquivel-Quintana had consensual sex with his 16-year-old girlfriend. He later pleaded no contest to violating California Penal Code § 261.5(c), which criminalizes sex with a person "under the age of 18 years" when the age difference between the parties is more than three years. Esquivel-Quintana was sentenced to 90 days in jail and five years' probation. After his release from jail, he moved from California to Michigan, a state in which the conduct underlying his criminal conviction would not have been a crime.

An "aggravated felony" conviction generally requires mandatory removal of an immigrant from the United States and renders the immigrant ineligible for most forms of relief from removal. 8 U.S.C. § 1101(a)(43) defines an "aggravated felony" to include the "sexual abuse of a minor." Claiming that Esquivel-Quintana's conviction constituted an "aggravated felony," the U.S. government initiated removal proceedings in Michigan. In 2008, before Esquivel-Quintana's conviction, the U.S. Court of Appeals for the 9th Circuit had held en banc, in Estrada-Espinoza v. Mukasey, that a conviction under the California law in question did not constitute "sexual abuse of a minor" under the immigration laws and was not an aggravated felony. Although Esquivel-Quintana asked the immigration judge to apply the 9th Circuit's reasoning to his case, the immigration judge declined to do so, accepting the government's argument that the removal proceedings were occurring within the jurisdiction of the U.S. Court of Appeals for the 6th Circuit - Esquivel-Quintana's new home. The immigration judge ordered Esquivel-Quintana removed from the United States. The Board of Immigration Appeals dismissed his appeal, noting that it was not bound by 9th Circuit law because the case arose in the 6th Circuit, which had not ruled on the definition of "sexual abuse of a minor" in this context.

Applying the Supreme Court's 1984 decision in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the 6th Circuit deferred to the BIA's interpretation of "sexual abuse of a minor" and upheld the removal order. The dissent would have applied the "rule of lenity," a judicial doctrine under which ambiguities in criminal law are resolved in favor of the defendant, to the interpretation of the criminal-removal provision in the immigration law and would have found that Esquivel-Quintana's conviction was not an aggravated felony.

The question presented to the Supreme Court is whether Esquivel-Quintana's conviction constitutes an "aggravated felony" as "sexual abuse of a minor" under U.S. immigration law.

Esquivel-Quintana contends that because there is no "readily apparent" uniform definition of "sexual abuse of a minor," the court must compare the elements of the California crime against "[t]he prevailing view in the modern codes." Such a comparison, he argues, reveals that "federal law, the Model Penal Code, and the laws of 43 states consider the least of the acts criminalized under Cal. Penal Code § 261.5(c) - consensual sex between a 21-year-old and someone almost 18 - to be entirely lawful. Six of the seven remaining states deem it not sufficiently serious to be treated as 'sexual abuse.'" California is the exception.

Esquivel-Quintana goes on to assert that because the statute is not ambiguous, the BIA's determination that his conviction was an aggravated felony does not warrant Chevron deference. Even if the statute were ambiguous, he points out, in cases such as Immigration and Naturalization Service v. St. Cyr, in 2001, the court has espoused "the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien." Moreover, the rule of lenity also requires ambiguities in statutes with criminal applications to be narrowly construed. Finally, he maintains, the BIA's interpretation here would not be entitled to deference because it is unreasonable.

A "friend of the court" brief in support of Esquivel-Quintana submitted by the Immigrant Defense Project and two other immigrant groups takes a slightly different approach to interpreting the relevant statute. The amici argue that when there is a "readily apparent" federal definition of an offense, the Supreme Court will apply it, as it did in in Taylor v. United States, in 1990. They contend that just such a definition exists in this case: The phrase "sexual abuse of a minor" in the statute refers to the offense of the same name described in the Sexual Abuse Act of 1986, as amended in 1996, the same year "sexual abuse of a minor" was added as an aggravated felony to the immigration statute. That federal offense applies only to minors under 16 and not to all forms of consensual sexual contact. Under that "readily apparent" federal definition, Esquivel-Quintana's conviction therefore would not constitute an aggravated felony requiring removal.

Defending the 6th Circuit's ruling, the federal government contends that Esquivel-Quintana's conviction is an aggravated felony under the plain language of the immigration statute or, alternatively, under the BIA's reasonable interpretation of that provision. The government first asserts that the statutory language - "sexual abuse of a minor" - clearly encompasses all crimes involving sex with minors. In light of that clear statutory language, the government maintains, the court need not engage in the kind of time-consuming surveys of state law that are found in Esquivel-Quintana's brief.

The government goes on to argue that, even if the court determines that the term "sexual abuse of a minor" is ambiguous, Chevron mandates deference to the BIA's reasonable construction of that phrase. Any canon of statutory interpretation, such as the rule of lenity or the rule that ambiguities in deportation statutes should be construed in favor of the noncitizen, only comes into play as an interpretive method of last resort. In the government's view, Chevron deference, not canons of statutory construction, carries the day in this case.

In setting a series of records for numbers of removals during President Barack Obama's first term, the government focused its removal effects on noncitizens convicted of crimes. President Donald Trump has issued an executive order that, if implemented, would expand crime-based removals. This case illustrates some of the complexities associated with reliance on state criminal convictions in federal removals, which can lead to a lack of uniformity in the application of the U.S. immigration laws. The disparities between the states in areas of criminal law frequently relied on for removal, such as state marijuana laws, are growing, and are likely to pose interpretive challenges in the future for the federal courts in criminal-removal cases. It remains to be seen whether the justices will focus on these issues during the oral argument next week.

February 17, 2017

Radio Interview on Immigration Policy and Lessons from the Past

This week I was interviewed on "Your Call," a call-in news program produced by San Francisco public radio station KALW, regarding the recent executive orders on immigration by President Donald Trump.

My interview was part of Your Call's weeklong series on immigration and refugee policies. Monday's shot, in which I participated, was titled "Immigration Policy - Lessons from the Past."

To listen, visit http://kalw.org/post/your-call-immigration-policy-lessons-past.