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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 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.

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.

February 10, 2017

News Media and the Trump Executive Orders

I have been discussing the Trump executive orders in the media. In addition to news agencies like CNN, I also provided commentary to these interesting media outlets.

The Conversation -- On its website, "The Conversation" describes itself as "an independent source of news and views from the academic and research community, delivered direct to the public. Our team of professional editors works with university and research institute experts to unlock their knowledge for use by the wider public." I have contributed a few essays to The Conversation, including my latest, "History Shows Trump Will Face Legal Challenges to Detaining Immigrants." It was republished in Salon.

The Scholars' Circle - This is a weekly interview program that airs in various cities. I took part in the February 5 program on human rights laws and shutting out refugees. The link to the audio is here: http://www.armoudian.com/scholars-circle-human-rights-laws-challenging-usa-shutting-out-refugees-february-5-2017/.

eFM - This is a radio program in Seoul, South Korea! I provided a preview of the oral argument before the Ninth Circuit. Here's the download link: http://cdn.podbbang.com/data1/tbsadm/thmorning170208002.mp3

Minnesota Public Radio (MPR) - It was interesting to speak with MPR, as Minnesota is one of the states suing the Trump administration over the executive order that bans refugees and travelers from the seven predominantly Muslim nations from entering the United States. https://www.mprnews.org/story/2017/02/02/behind-the-numbers-on-immigration-detentions

KPFA Radio - This morning I appeared on the news program UpFront on KPFA, a community-supported radio station in Berkeley. I discussed the Ninth Circuit's ruling to continue blocking enforcement of President Trump 's travel ban. My interview shows up around the 9-minute mark. https://kpfa.org/episode/upfront-february-10-2017/  

February 6, 2017

Could an Exec. Order on H-1B Visas Keep U.S. Workers First?

Today the National Law Journal published an op-ed I wrote about the potential impact of a draft order tightening the temporary worker visa program.

Excerpt:

The direction of the skilled employment visa restrictions shouldn't be surprising. President Trump often decried the impact of immigrant labor on American workers. Attorney General nominee Sen. Jeff Sessions (R-AL) has done the same. In discussing immigration on his website, Sessions refers to "The Silicon Valley Hoax" of needing immigrant workers in the high-tech sector.

Trump's sentiments tap into a long history of immigration restrictionists, from the infamous Chinese exclusion laws of the late 1800s, claiming that immigrant workers undercut the wage scale and injured American workers.

Modern social science research, however, demonstrates that the economy generally benefits from immigrant labor and that, except for those without a high school diploma who see a small (1-2 percent) decrease in wages, wages are not depressed.

Visit the National Law Journal site to read the full op-ed.

January 26, 2017

"Documenting the Immigrant" Conference Co-Sponsored by the School of Law

Tomorrow brings "Documenting the Immigrant: U.S. Immigration Policy Past, Present, and Future," a major conference organized by the UC Davis Institute for Social Sciences with co-sponsors including the School of Law.

I will speak on a panel in the afternoon.

From the conference web page:

This one-day conference, hosted by ISS, will bring scholars from multiple disciplines together with policy activists, journalists, and individuals connected to the legislative environment to explore U.S. immigration policy since 9/11 and address the implications for immigration policy of the Trump presidency.

Friday, January 27, 2017

ARC Ballroom, UC Davis

 

8:45-8:55: Conference Welcome

 

8:55-10:25: Borderlines: Life, Death and Being Latina/o

Robert Irwin, UC Davis (Department of Spanish)

Rene Rocha, University of Iowa (Department of Political Science)

Maria Del Carmen Pantoja, UC Davis (Department of Political Science)

Dinah Bear (Humane Borders) 

Moderator: Kristina Flores-Victor, UC Sacramento Center

 

10:25-10:35: Break 

 

10:35-12:05: Detained, Deported, and Threatened: A Roundtable

Anna Sampaio, Santa Clara University (Departments of Ethnic Studies and Political Science)

Margaret Regan, Tucson Weekly (journalist and author)

Moderator: Bradford Jones, UC Davis (Department of Political Science)

 

12:05-12:45: Lunch

 

12:45-2:05: DACA, DAPA and Deportation Threat

Barbara Pinto, Centro Legal de la Raza (Immigration Senior Staff Attorney)

Faye Hipsman, Migration Policy Institute (Policy Analyst and California Program Coordinator)

Andrea Gaytan, UC Davis (Director, AB 540/Undocumented Student Center)

Melissa Keaney, National Immigration Law Center (Immigration Attorney)

Moderator: Melissa Michelson, Menlo College (Department of Political Science)

 

2:05-2:15: Break

 

2:15-4:00: 15 Years Later: Immigration Policy Post 9/11 and What's Ahead in the Trump Administration

Kevin R. Johnson, UC Davis (School of Law)

Giovanni Peri, UC Davis (Department of Economics)

Celeste Montoya, University of Colorado (Department of Women and Gender Studies)

Stephen Nuño, Northern Arizona University (Department of Political Science)

Ali Noorani, National Immigration Forum

Philip Martin, UC Davis (Department of Agricultural and Resource Economics)

Moderator: Karthick Ramakrishnan, UC Riverside (School of Public Policy)