[Cross-post from The Daily Journal]

By Kevin R. Johnson

Unfortunately, as has happened at various times in history, anger, frustration, and disagreements with others has led to violence. For a while, violence, for example, was part and parcel of the struggle over access to abortions, with abortion clinics bombed and doctors who provided reproductive services killed. A long political fight followed, with the Supreme Court ultimately stepping in.

More recently, violence against members of the gay, lesbian, and transgender communities has followed recognition of their rights by political opponents of those rights. For many, unhappiness with political outcomes or other matters did not trigger violence. Recent events show today that violence may be viewed by many Americans as a viable political approach.

As history teaches, racial tensions can lead to violence. Throughout the pandemic, Asian Americans have been on edge in light of the spike in hate crimes against members of their communities. Some claimed that President Trump’s verbal attacks toward Chinese people encouraged violence against them. The spike itself shows the flaws in the claims that Asian Americans (called by some the model minority), even those whose families have been in the United States for generations, are fully accepted in U.S. society. Undoubtedly, some might well blame immigration and migrants for the violence in Monterey Park. They won’t assimilate. “They” live separate from “us.” But some of the culprits in the various attacks apparently have assimilated into the culture of violence that has become a new form of alternative dispute resolution in the United States.

Violence today is viewed in many circles as a form of expressing disagreement. That view affects all of us as a nation.

The tragic events in Monterey Park and Half Moon Bay, two California suburbs known for peace and tranquility, provide an appropriate time for a national soul-searching. Our fabric is frayed and violence has spread like a wildfire. Change must happen if the nation hopes to never see again anger and frustration erupt into violence.

[Cross-post from ImmigrationProf Blog]

By Kevin R. Johnson

2022 has been an exciting year in immigration law and enforcement.  It probably will be most remembered for

(1) the efforts of (and courts' resistance to) the Biden administration to roll back the Trump administration's immigration measures; and

(2) the publicity stunts of the governors of Texas and Florida to show that the Biden administration was not effectively enforcing the immigration laws. 

Here is the ImmigrationProf top 10 news stories for 2022.  By way of comparison, here are the top 10 news stories from 2021.

1.  The Biden Administration Faced Fierce Resistance to Rolling Back Trump Immigration Enforcement Measures.

As a public health measure, President Trump had invoked a public health law, Title 42, to expel migrants seeking to enter the country at the U.S./Mexico border.  The Biden administration sought to lift the Title 42 order.  Some courts and political leaders fiercely resisted the efforts.  The Supreme Court earlier this week stayed an injunction requiring an end of the Title 42 order. 

It was not only conservatives who questioned the lifting of the Title 42 order.  Its termination generated concern among some Democratic Senators.  With the Title 42 order slated to end, some Democrats became nervous.  As Law360 reported, four Democratic senators pressed the U.S. Department of Homeland Security to answer questions about managing the expected increase in migrants crossing the southern border, with a lifting of the Title 42 order.

The intensity of the worries grew after U.S. District Judge Emmet Sullivan invalidated the Title 42 order as "arbitrary and capricious."   Maria Sacchetti and Spencer S. Hsu for the Washington Post reported on the ruling.  The court order and the Biden administration's attempted announcement the the title 42 order would be lifted, sparked controversy. 

Days before the scheduled lifting of the Title 42 order, U.S. Supreme Court Chief Justice John Roberts stayed the court order ordering the end of the Title 42 order.  The bottom line:  the Trump administration's Title 42 expulsion order remains in effect.

DHS Announces the End (Finally) to Remain in Mexico Policy,  A Court Says No Way

Title 42 was not the only area in which the Biden administration's immigration initiatives -- and roll backs on Trump policies -- experienced resistance.  Despite the Supreme Court ruling allowing the Biden administration to dismantle the "Remain in Mexico" policy, which allows the return of asylum-seekers to Mexico while their asylum claims are being decided, the policy remained in place.  The Department of Homeland Security announced that it would phase out the Trump era Migrant Protection Protocols (MPP) program reported Adolfo Flores for BuzzFeed News.  MPP forced thousands of migrants to spend lengthy periods in dangerous conditions in Mexico.  It "has endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border," noted DHS Secretary Alejandro Mayorkas. 

The legal roller coaster over President Trump's Remain in Mexico policy continues.  A trip to the Supreme Court did not end the controversy.  Just last week, U.S. District Judge Matthew Kacsmaryk, a Trump appointee, suspended the Biden administration's termination of MPP.

There have been many other challenges to the Biden administration's immigration policies.  The Title 42 and Remain in Mexico battles offer an idea of the magnitude of the resistance and the administration's inability to reverse signature Trumpian immigration measures.

2.  State Governors Protest the Alleged Lack of Federal Immigration Enforcement by Transporting Migrants North

Texas Governor Greg Abbott and Florida Governor Ron DeSantis in 2022 repeatedly engaged in publicity stunts that showed utter disregard for the plight and humanity of migrants who have come to the United States. That included the extraordinary step of busing migrants to New York City, Washington D.C., and Chicago.

Governor DeSantis's transportation of a group of migrants to Martha's Vineyard in Massachusetts, a tourist destination of the rich and famous, attracted the most attention.  See Class Action: Migrants Say Florida Governor DeSantis "Stranded" Them on Martha's Vineyard.  A lawsuit followed Governor DeSantis's Massachusetts adventure.  Law360 reported on the suit by asylum-seekers alleging that they were tricked into boarding flights to Martha's Vineyard -- and left them stranded there -- in violation of their constitutional rights.

Other reports on the Martha's Vineyard spectacle:

Immigrants land on Martha's Vineyard;  Florida Governor takes credit

DeSantis Plays Politics with the Lives of Migrants

In line with the Governor DeSantis playbook, Texas Governor Greg Abbott made federal immigration enforcement a re-election campaign issue.  See Texas Governor Now Busing Migrants to Chicago as well as DC and NYC.

He sent migrants by bus from Texas to Washington, D.C. , New York City, and Chicago.  See Texas Governor Busing of Migrants to NYC and DC Keeps Him in the News.   NPR reported that "New York City Mayor Eric Adams . . . criticiz[ed] Texas Gov. Greg Abbott for sending busloads of migrants to the city, saying that Abbott 'used innocent people as political pawns to manufacture a crisis.'" (bold added).

Governor Abbott took a number of other immigration measures (and here).  They generated controversy but kept Abbott in the news.  

3.  The Supreme Court and Immigration

"Immigration in the Supreme Court, 2021 Term" reviews the Court's immigration decisions of the 2021 Term.  See last year's recap of the 2020 Term. 

The 2021 Term did not include any blockbuster immigration decisions.  Biden v. Texas probably received the most attention.  The decision cleared the way for the Biden administration to dismantle a signature Trump administration immigration enforcement policy, the "Remain in Mexico" policy, which requires asylum seekers to be returned to Mexico while their claims are being decided.  Breaking News: Supreme Court Decides Remain in Mexico Case.    

The Court decided five immigration cases in the 2021 Term, an average number for the Court in recent years.  What is different this Term is that the pro-immigrant position failed in four of the five immigration cases, showing the tilt of the Supreme Court's conservative super-majority.  The Court's immigration decisions include ones requiring careful, but rather routine (if not ponderous), interpretation of the immigration statute as well as more general legal principles.

For reasons having nothing to do with immigration, few will soon forget the 2021 Term in U.S. Supreme Court history.  For weeks, news was dominated by a leaked draft opinion in a blockbuster abortion case, which foreshadowed the overruling of Roe v. Wade (1973) in Dobbs v. Jackson Women's Health Organization.  In addition, controversy surrounded conservative Justice Clarence Thomas's ethical obligations in connection with the Court's consideration of cases in which his wife's political activities were implicated. 

This blog post looked at "The Overruling of Roe v. Wade and Immigrants."  The demise of Roe v. Wade undoubtedly will affect immigrant women -- especially poor ones (and here) -- in the United States   It will take some time to see the full impacts of Dobbs v. Jackson Women's Health.  Many questions will arise about the scope and breadth of the decision.  Will, for example, the federal government continue to provide access to abortions for immigrant women in detention?  Access to an abortion by a detained immigrant teen was the subject of litigation a few years back.  Some women may feel it necessary to travel to Mexico for an abortion.  Can a state bar travel outside the state to do so?  

On the last day of the 2021 Term, Associate Justice Stephen Breyer retired and the first African American woman Justice, Ketanji Brown Jackson, was sworn in to replace him.  During her confirmation hearings, Judge Jackson was quizzed on expedited removal ruling.  Here is a review of the Immigration Record of Judge Ketanji Brown Jackson, President Biden's Supreme Court Nominee.

With the retirement of Justice Stephen Breyer, the Court lost the author of a memorable majority opinion in Zadvydas v. Davis (2001), which reasoned that the prospect of indefinite detention of a noncitizen would raise "serious" constitutional questions.  He wrote "[b]ased on our conclusion that indefinite detention of aliens . . . . would raise serious constitutional concerns, we construe the statute to contain an implicit 'reasonable time' limitation, the application of which is subject to federal-court review."  Contrary to the teachings of the plenary power doctrine, which directs the courts to defer to the immigration judgments of the President and Congress, Justice Breyer did not show special deference to the U.S. government's immigration decision in that instance.  Zadvydas v. Davis has undermined the decision in recent years.

3.  Tragedy in San Antonio. Deaths on the Border Continue

A tragic mass death of migrants being trafficked in a truck/trailer into the United States in San Antonio shocked the nation, reminding us of the deadly consequences of contemporary migration flows.  See Death on the Border Chapter 101:   46 Migrants Reported Dead in Truck/Trailer in San Antonio, Texas.  In a statement on the tragedy, President Biden acknowledged that the event may be "the deadliest people smuggling tragedy in recent U.S. history."

The San Antonio deaths are the tip of the iceberg.  Border deaths are a regular part of U.S./Mexico border life and are an international phenomenon as well.  See IOM Report: More Than 50,000 Migrant Deaths; CNN: A record number of migrants have died crossing the US-Mexico border.

Deaths of migrants along the U.S./Mexico border have made the news for years.  See, for a few examples, here, here, here.  The death toll continues to mount.  Earlier this year, CNN reported that nearly 750 migrants have died at the U.S./Mexico border this fiscal year, a new record, according to Department of Homeland Security figures.  Migrants often face treacherous terrain when crossing the border - including oppressive desert heat, dangerous waters, and falling from the border wall.

4.  President Trump Announces 2024 Run for President

Can you believe it?  Donald Trump announced his 2024 run for President.  On the same day that a federal court found that his administration's extraordinary Title 42 order was arbitrary and capricious, Donald Trump announced that he would again run for President.  He made it clear that immigration enforcement would be a major plank in his platform.  President Trump, of course, took the most aggressive enforcement measures of any modern U.S. President.

5.  The World Welcomes Ukrainian Refugees Flee the Russian Invasion

The Russian invasion of Ukraine led to a mass migration of refugees.  European nations embraced them with open arms.  A number of posts on the ImmigrationProf blog (and here) have highlighted the differential treatment of Ukrainian refugees and those from Syria, Afghanistan, and Central America.  Voice of America released a report entitled "Immigration Experts Contrast US Support for Ukrainian, Afghan Refugees."  Here are a few more stories on the treatment of Ukrainian refugees: Ukrainian refugee crisis already ranks among the world's worst in recent history Refugee Double Standard: What the Global Response to Ukrainian Refugees Teaches Welcome for Ukrainians reveals 'hypocrisy' of Irish immigration system? "Fortress Europe" opens for Ukrainian refugees but keeps others out Ukrainian Refugees and Racism

6.  Migrants Flee Chaos in Venezuela

Political and economic turmoil in Venezuela led to a flow of migrants from that South American nation.  See Migrants from Venezuela, Nicaragua and Cuba are driving apprehensions at the U.S./Mexico border; AP -- US officials: Border crossings soar among Venezuelans.

Consistent with other news reports (and here), CNN reported that U.S. government data showed that "[i]n August alone, immigration agents encountered more than 203,000 individuals at the southern border. Migrants from just three countries - Venezuela, Nicaragua and Cuba - made up about 56,000 of those encounters, or about 28 percent . . . ."   The increase in migration from these three nations reduced the share of migrants coming from Mexico and Central America.  

7. Top Trump Advisor Steve Bannon Arrested for Fraud in Connection with Fundraising to Build a Border Wall

At one time a top Trump advisor, Steve Bannon in September surrendered on New York state fraud charges related to fundraising to build the wall along the U.S./Mexico border.  The state charges are based on the same conduct that Bannon was charged with by federal prosecutors in 2020. Then-President Donald Trump pardoned Bannon on the federal fraud charges. Presidential pardons do not apply to state charges.  The prosecution is pending.

8.  10th Anniversary of  DACA

June 15, 2022 marked the 10 year anniversary of the announcement by President Barack Obama of the Deferred Action for Childhood Arrivals (DACA) policy.  DACA was a major immigration milestone of the 21st century and provided limited relief to hundreds of thousands of young noncitizens.

Although the Supreme Court invalidated the Trump administration's attempt to rescind DACA, the Biden administration has met formidable judicial resistance to continuing the policy.  The lower courts have not been friendly to the administration's efforts to revive DACA and litigation continues over the future of DACA.

9.  UK's Policy of Shipping Asylum Seekers to Rwanda Challenged

The following news story did not get the attention in the United States that it deserves.  Kit Johnson blogged about the United Kingdom's extraordinary decision to ship asylum seekers to Rwanda.  Yes, Rwanda.  Click here for an Associated Press discussing how the policy operates.  The controversy over the policy continues.  Rwanda, really?

10.  The Holy Grail?  Immigration Reform.  Forget About It.

Congress discussed at various times the possibility of long-awaited immigration reform.  A possible proposal briefly made the news as the lame duck Congress moved toward the end of 2022.  See Is There a Possibility for Bipartisan (and Limited) Immigration Reform?

The recent chatter about the possibility of bipartisan immigration reform has dissipated.  Senators Kyrsten Sinema, who recently left the Democratic Party to become an Independent from Arizona, and Thom Tillis (R-NC), floated a framework for immigration reform.  It would have provided legal status for young undocumented immigrants and appropriations for additional border security.  To this point, reform has not come.  Forget about it.

Milestones

1.  UC Hastings Law Center on Race, Immigration, Citizenship, and Equality

ImmigrationProf blogger and Professor Ming Hsu Chen this fall launched a center at UC Hastings that will pursue research on equality issues and collaborate with other scholars and academic institutions.  Chen previously founded the Immigration and Citizenship Law Program at the University of Colorado.

The Center on Race, Immigration, Citizenship, and Equality (RICE) will offer lectures, conferences, panel discussions, research projects, student employment opportunities, and law classes with fieldwork components. It will promote scholarly engagement and forge links between other centers at UC Hastings, including the Center for Gender and Refugee Studies and the Center for Racial and Economic Justice.

2.  Passing of Immigration Law Professors

Legal academia in 2022 lost two wonderful and influential immigration law professors.

Funeral Services for Professor Michael OIivas: RIP Michael Olivas Immigration Scholar

We lost an influential immigration scholar Professor Michael Olivas.  He had been honored in 2010 as this blog's Immigration Professor of the Year.  Professor Olivas was an influential immigration law scholar and a leading figure in legal education.  One strand of Professor Olivas's vast body of scholarship focused on issues at the intersection of immigration and Latina/o civil rights.  He also was a wonderful immigration colleague and organized the inaugural Immigration Law Teachers workshop in New Mexico in 1992.

RIP Professor Anna Shavers, Friend and Colleague

We also lost another wonderful person and influential immigration law professor, Anna W. Shavers, Cline Willliams Professor of Citizenship Law and associate dean for diversity and inclusion at the University of Nebraska College of Law.  She was simply the most decent person one could ever want to meet.  And she was an important immigration scholar.  Here is the University of Nebraska's statement on Professor Shavers's passing.

3.  Welcome Austin Kocher, New ImmigrationProf Blogger

In January, the ImmigrationProf blog announced the addition of blogger Austin Kocher, Research Associate Professor for the Transactional Records Access Clearinghouse.  Check out his profile.  TRAC is a research institute that uses Freedom of Information Act requests to study the federal government.  

Sports Page

Immigrants made the sports pages in 2022.  Here are a few headlines:

1.  Immigrants and the World Cup  

Argentina beat France in the finals on penalty kicks and took home the World Cup.  Migrant labor, with abuses reported, made the World Cup possible in Qatar.  Some may be surprised that many of the soccer players were not born in the country that they represented in the competition.      

2.  Game, set, match:  Novak Djokovic loses visa appeal, leaves country ahead of Australian Open

Last January, the saga of professional tennis champion Novak Djokovi seeking to defend his title in the Australian Open finally came to an end.  CNN reported that "[i]n a statement released after his appeal was dismissed, Djokovic said he would cooperate with authorities in arranging his departure from the country and confirmed he would not be playing in the Australian Open."  According to CNN, "Judge James Allsop said earlier that the court's ruling to uphold the immigration minister's decision to revoke Djokovic's visa was unanimous."

3.  Boston Celtic Changes Name to Freedom, calls becoming U.S. citizen "unforgettable"

At the very end of 2021, a National Basketball Association Boston Celtics player changed his name from Enes Kanter to Enes Kanter Freedom in celebration of becoming a U.S. citizen.  He said that taking the citizenship oath was "maybe the most unforgettable moment that I had in my life." An immigrant from Turkey, Freedom has been an outspoken critic of President Recep Tayyip Erdoğan and the Turkish government.  NPR interviewed Freedom about why he changed his name and his support for a boycott of the Olympics in China.

Society Page

An immigrant with expensive tastes, a propensity for con jobs, and the subject of a hit Netflix series, faced removal from the United States.  See Inside fake German heiress Anna Sorokin's immigration battle.

 The immigration case of Anna Sorokin, whose elaborate fraud captured the world's imagination, continues.  The subject of the hit Netflix series "Inventing Anna", Sorokin served about four years in prison after found guilty of criminal charges. She had claimed to be a German heiress named Anna Delvey who had a $60 million inheritance and was raising funds to launch a Manhattan social club. Sorokin swindled hundreds of thousands of dollars from friends, banks and New York City luxury hotels to fund a lavish lifestyle.

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.

Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court in an extraordinary decision that jars modern racial sensibilities declared that Congress possessed “plenary power”—absolute authority—over immigration and that racist immigration laws were immune from judicial review of their constitutionality.

The bedrock of U.S. immigration jurisprudence for more than a century and never overruled by the Supreme Court, the plenary power doctrine permits the treatment of immigrants in racially discriminatory ways consistent with the era of Jim Crow but completely at odds with modern constitutional law. The doctrine enabled President Trump, a fierce advocate of tough-as-nails immigration measures, to pursue the most extreme immigration program of any modern president, with
devastating impacts on noncitizens of color.

As the nation attempts to grapple with the Trump administration’s brutal treatment of immigrants, it is an especially opportune historical moment to reconsider the plenary power doctrine. Ultimately, the commitment to remove systemic racism from the nation’s social fabric requires the dismantling of the doctrine and meaningful constitutional review of the immigration laws. That, in turn, would open the possibilities to the removal of systemic racial injustice from immigration law and policy.

[Cross-posted from The Conversation]

By Kevin R. Johnson

In the very last decision of its latest term, the Supreme Court released a major ruling that not only clears a barrier to ending a signature policy of the Trump administration but also signals that the future of immigration policy is in the hands of the electorate.

In Biden v. Texas, the Supreme Court rejected an effort to prevent the current president’s rollback of a Trump-era policy that requires asylum seekers arriving at the U.S. southern land border to be returned to Mexico while their claims were being processed.

The 5-4 decision means that the case will be returned to the lower courts court. But it also makes clear that whoever is control of the White House has the power to change directions in immigration policy – even drastic reversals of policy. It follows that presidents can do the same in other substantive legal areas as well, such as civil rights and environmental protection.

The rights (and wrongs) of remain

The issue in Biden v. Texas was whether the Biden administration could dismantle a Trump administration policy formally known as Migrant Protection Protocols but widely referred to as the “Remain in Mexico” policy.

As part of an array of immigration enforcement measures, the Trump administration announced the policy in late 2018 in response to numbers of migrants arriving at the U.S.-Mexico border.

But the Migrant Protection Protocols came under scrutiny amid concerns over the safety and conditions to which asylum seekers were subjected in camps under the supervision of Mexican authorities. Human Rights Watch found the policy sent “asylum seekers to face risks of kidnapping, extortion, rape, and other abuses in Mexico” while also violating “their right to seek asylum in the United States.”

Yet an attempt by the Biden administration to eliminate the protocols was barred by the U.S. Court of Appeals for the Fifth Circuit. The circuit judges found that the Biden administration had violated immigration law requiring the detention of asylum seekers.

The Supreme Court rejected this ruling. In a majority opinion written by Chief Justice John Roberts – joined by Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor and Brett Kavanaugh – the court held that the Biden administration’s decision to terminate the Migrant Protection Protocols did not violate federal immigration law. The state of Texas had argued that ending the “Remain in Mexico” policy violated a provision that every asylum seeker entering the country be returned or detained.

In his dissent, Justice Samuel Alito argued that the statute requires mandatory detention of migrants at the border. Justice Amy Coney Barrett’s dissent expressed the view that the Supreme Court lacked the jurisdiction and that the case should be remanded back to the lower courts.

Avoid the arbitrary, cease the capricious

The Supreme Court’s decision means the case will be sent back to the lower court to decide, but with the removal of a major legal obstacle preventing Biden from ending the “Remain in Mexico” policy. The Supreme Court held that the immigration law does not require mandatory detention of all asylum seekers while their claims are being decided.

But moreover, the court made clear that the president has the discretion to change direction in immigration policy and continue, or end, policies of the previous president.

That might seem self-evident. But it comes after another 5-4 decision penned by Chief Justice Roberts – 2020’s Department of Homeland Security v. Regents of the University of California, which held that a president could not act irrationally in changing immigration policy.

In that decision, the Supreme Court found that the Trump administration had acted in an arbitrary and capricious fashion in rescinding the Obama administration’s Deferred Action for Childhood Arrivals – or DACA – policy. That policy provided limited legal status and work authorization to undocumented migrants who came to the country as children, so-called Dreamers.

In the court’s view, the Trump administration had not adequately considered the interests of the migrant children in deciding to rescind the policy and had given inconsistent reasons about the basis for the rescission.

That ruling provided fuel for states to challenge the Biden administration when it attempted to roll back some Trump-era policies. For example, Arizona, along with other states, challenged Biden’s attempt to abandon a proposed rule change by the previous administration that would tighten the requirements on low- and moderate-income noncitizens seeking to come to the U.S. Although the Supreme Court initially accepted review of the case, it ultimately dismissed the appeal and declined to decide the merits.

In the end, the Supreme Court’s decision in Biden v. Texas stands for the simple proposition that presidential elections matter when it comes to government policy. As long as an incumbent administration follows the rules – including rational deliberation of the policy choices in front of it – it can, the Supreme Court has said, change immigration policy.

[Cross-posted from the Daily Journal]

By Kevin R. Johnson

Ketanji Brown Jackson has the profile of a perfect nominee to be an associate justice on the U.S. Supreme Court.

Harvard College. Harvard Law School. Editor of the Harvard Law Review. A law clerk to two federal judges and Associate Justice Stephen Breyer. Criminal and civil experience. With over  nine years as a federal judge, Judge Jackson has more judicial experience than Justices Elena Kagan, Brett Kavanaugh and Amy  Coney Barrett had when confirmed. So why the cringeworthy treatment of Judge Jackson, who would be the first African­ American woman on the high court, by Republican members of the Senate Judiciary Committee? Sadly enough, race and partisan politics deeply influenced the treatment of                      Judge Jackson.

Over three days of confirmation hearings, Judge Jackson with poise, dignity and patience thanked each senator for every single question and thoughtfully attempted  to answer each one. She explained her approach  to deciding cases as a judge. With grace, Judge Jackson always maintained a calm and professional demeanor even when some of the senators did not.

In deciding cases, Judge Jackson described her approach as carefully adhering to the constitutional and statutory text and following the intent of the drafters of the text. As a federal district court judge, Judge Jackson decided the cases based on the facts and the law in a careful -- might I say judicious -- way. She appears to be a moderate pragmatist in her judicial approach, much like her mentor who she is set to replace, Justice Breyer.

Wary of being called out as racists, the Republican senators on the Judiciary took a roundabout path to                            challenging Judge Jackson. They persistently sought to paint Judge Jackson as "soft on crime.”

The endorsements of the Fraternal Order of Police and the International Association of Chiefs of Police did not         stop the Republican senators' from pushing that attack. Nor did the fact that Judge Jackson's own brother is a law enforcement officer.

In 1967, senators in similar fashion claimed that the first African-American on the Supreme Court, Thurgood Marshall, was soft on crime. Like Jackson, Marshall also represented criminal defendants.

Crime historically has been one way of indirectly talking about race in the United States. In successfully running for president in 1968, Richard Nixon campaigned on a "law and order" platform that tapped into concerns of some whites about riots, as the nation reckoned with civil rights demands by African-Americans. At a time when the police killings of George Floyd, Breanna Taylor and other African-Americans had the nation confronting systemic racism in the criminal justice system, it is cruelly ironic that the Republican senators again relied on crime to assail a Black nominee with outstanding credentials.

Senator Josh Hawley, R-Mo., in particular, joined by others, including Sens. Lindsay Graham, R-S.C., Ted Cruz, R-Texas, and Tom Cotton, R-Ark., caustically challenged Judge Jackson on crime and her sentencing of defendants convicted of possession of child pornography. They interrupted and badgered her while exhibiting general disrespect, at times disdain, for Judge Jackson.

In a similar vein, several senators questioned Judge Jackson's representation of detainees labeled as enemy combatants on Guantanamo Bay. Other senators joined in the piling on about the representation of terrorists.  Senator Graham, at one point, lashed out that he hoped that the detainees just would flat out "die in jail.”

The conservative challenge to critical race theory, which challenges racial discrimination in U.S. society, came into play in the interrogation of Judge Jackson. Senator Cruz questioned her about books assigned to students    at Georgetown Day School, a private school for which she serves on its board of trustees. Waving books around in a manner that likely will soon be parodied on Saturday Night Live, he brought blown-up pictures of pages from one book titled, "Antiracist Baby," which he alleged embodied the evils of CRT. One can only wonder why Judge Jackson would be questioned about CRT. As she succinctly put it, "I’ve never studied critical race theory and I've never used it. It doesn't come up in the work that I do as a judge." Because Judge Jackson is Black, she apparently in the eyes of some conservatives is a suspected underground CRT adherent.

Partisan politics, with the midterm election on the horizon, also came into play. Playing to her conservative base, including bringing up CRT, Sen. Marsha Blackburn, R-Tenn., questioned Judge Jackson about, among other things, the rights of transgender people. One of the incredible questions she posed to Judge Jackson was  how she would define the word "woman." Judge Jackson's actual views on transgender rights seemed to be irrelevant to Blackburn's questioning.

Graham appeared angry about the past political skirmishes during previous confirmation hearings. He asked Judge Jackson to rate her commitment to religious faith on a scale of one to 10, even though he admitted that  questions about religion were inappropriate; he asked them because questions on religion were asked of Justice Barrett at her confirmation hearings. In an angry tone, Graham claimed that the "radical left" supported her nomination and attacked the record of Graham's preferred candidate, Judge Michelle Childs of South Carolina.

The confirmation hearings revealed much about the strength of Judge Jackson's character. She mentioned that, when she began at Harvard, it was a "rough" period of adjustment. A Black woman saw her, apparently looking downtrodden, and gave her one word of advice. "Persevere," she told a younger Judge Jackson. That is  precisely what Judge Jackson did throughout the Republican onslaught at the confirmation hearings.

In the end, the U.S. Senate -- as it should -- will almost certainly confirm Judge Jackson as a Supreme Court justice. Nonetheless, the gauntlet that she was subjected to was just another troubling episode in this nation's long history of mistreatment of Black women. "Race baiting" is one characterization of the Republican senators' hostile treatment of Judge Jackson. Or, to use Justice Clarence Thomas' phrase used to describe his  1991 confirmation hearings, was it a "high-tech lynching"?

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

Terminology has proven to be tricky in public discussions of immigration.  Recognizing that the terms “alien” and “illegal alien” dehumanize human beings and rationalize their harsh treatment, news services now refer to undocumented immigrants.  For similar reasons, a proposed immigration reform bill would replace “alien” with “noncitizen” in the U.S. immigration laws. 

Reference to a suspected criminal’s undocumented status in a news story also may be problematic.  Consider this March 8, 2022 Fox News headline:  “Gunman who Killed Three Daughters in California Church was in US Illegally.” By tapping into popular stereotypes, such references inflame passions about—and in effect constitute subtle racial code for--Latina/o immigrants.  The salacious reference to a person’s immigration status results in the same kinds of damages as referring to an “African American” criminal defendant, which best journalistic practices generally prohibit.  Such references to immigrant status generally should be similarly avoided in crime news stories.

A Recent Example of News Exploitation of the Undocumented Immigrant

Last week, press outlets across the nation reported on a tragedy at a church in Sacramento, California.  On a supervised visit, a father, a Mexican citizen reportedly with mental health and drug problems, killed his three children and a chaperone before killing himself at a church.  Following an Associated Press (AP) report that the suspect had overstayed his visa and thus was not authorized to be in the United States, a local Sacramento news station reported that:  “David Mora Rojas . . . used a ‘ghost gun’ [a manufactured gun without registration] in the shooting.  Mora Rojas also overstayed his visa after entering California from his native Mexico” (emphasis added). 

AP originally speculated in its report “that a possible motive [for the killings] was fear of being separated from the children through deportation.”  In correcting the story, AP later admitted that “the AP did not have the reporting to substantiate that as a possible motivation.”

Oddly, rather than focus on mental health, drugs, or the proliferation of “ghost guns,” news agencies and politicians have seized on the news report about the father's immigration status and attempted to make a family tragedy into an immigration issue.  For example, Sacramento County Sheriff Scott Jones, currently running for Congress, declared in a Facebook post that blame for “this horrific tragedy” should be placed on “the deplorable state of our national immigration policies, and California’s Sanctuary State Laws.” 

Sensationalism in news stories unfortunately is nothing new.  It occurs regularly in reports about immigrants.  Although Fox News highlighted the undocumented status in the Sacramento case, such treatment is not confined to conservative news outlets, with the mainstream AP gratuitously referring to the Sacramento suspect’s immigration status, ABC News reported that, an “undocumented immigrant from Mexico, was found guilty by jury of first degree murder [of Mollie] Tibbets . . . in . . . rural . . . Iowa, in July 2018.” 

But what did David Mora Rojas’ immigration status have to do with the killings in Sacramento?  Unlike mental health, drugs, and ghost guns, his immigrant status does not seem relevant to the tragedy.  Being undocumented is not necessarily a crime and is not necessarily newsworthy. The fact that he overstayed his visa and thus was technically undocumented does not relate to the crime of murder.  Injecting his undocumented status into a news story about the tragic killings serves no other function than to stir up fears of immigrants and crime.  Moreover, because the popular stereotype of the criminal immigrant in the United States is that he is Mexican, the reference to undocumented status signals to many the Mexican background of the criminal suspect.  In announcing his successful 2016 run for President, Donald Trump played into this stereotype by characterizing Mexican immigrants as “criminals” and “rapists.”

Although some immigrants—from Mexico and elsewhere—do in fact commit crimes, studies consistently show that immigrants commit crimes at lesser rates than native born U.S. citizens.  Moreover, news stories that focus gratuitously on immigration status can result in the proliferation of hate crimes.  Recall that the shooter in the mass murder of Latina/os in El Paso in 2019 wrote a “manifesto” with the kinds of hatred directed at Mexican immigrants repeating many of the invectives that President Trump did in referring to people of Mexican ancestry.

There is another reason to avoid reference to immigration in crime news stories.  Undocumented status is not always easy to define.  A person seeking asylum for fear of gang violence in Honduras may not currently have authorization to be in this country but might be entitled to it.  A long-term resident without authorization also might be eligible for relief from removal under the immigration laws.  Being undocumented is not always as clear-cut as a simple reference to being undocumented might suggest. 

Extending the AP Stylebook on Racial Identification to Immigration Status

The AP Stylebook, a bible of sorts of best journalistic practices, cautions journalists on publishing information about a person’s race:  “Consider carefully when deciding whether to identify people by race.  Often, it is an unrelated fact and drawing increasing attention to someone’s race or ethnicity can be interpreted as bigotry.” (emphasis added).  The Stylebook explains its call for caution as follows:

[i]n cases where suspects or missing persons are being sought, and the descriptions provided are detailed and not solely racial. Any racial reference should be removed when the individual is apprehended or found . . . . In other situations when race is an issue, use news judgment. Include racial or ethnic details only when they are clearly relevant and that relevance is explicit in the story.  (emphasis added)

Because there are many times when a source’s race is irrelevant to the news item, the AP Stylebook careful approach to racial identification thus makes sense.  A criminal suspect’s immigration status should not be included in a crime news story unless it has something to do with the alleged crime.  Otherwise, such a reference is not news but simply exacerbates anti-immigrant and racist passions.  The same basic rationale holds true for reference to immigration status.  To paraphrase the AP Stylebook, an entry about immigration status could read, “consider carefully when deciding whether to identify people by [immigration status.]” “Any [immigration status] reference should be removed when the individual is apprehended or found.”

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

News outlets across the nation last week reported on a tragedy in Sacramento. On a supervised visit, a father killed three children, and a chaperone, before killing himself at a church.

Sadly, news outlets and political leaders now are trying to make immigration an issue by highlighting the fact that the father was an undocumented immigrant from Mexico. This kind of sensationalism unfortunately is nothing new and occurs regularly in high profile cases involving immigrants. One should ask the question what his immigration status had to do with the horrible crime? 

A local Sacramento news station reported that:

"The gunman who killed his three daughters, a chaperone who was supervising his visit with the children and himself in a Sacramento County church was known to have struggled with mental health issues, officials said.

New details also reveal that David Mora Rojas, 39, also used a `ghost gun' in the shooting. Mora Rojas also overstayed his visa after entering California from his native Mexico on Dec. 17, 2018, on a non-immigrant visitor visa, U.S. Immigration and Customs Enforcement spokeswoman Alethea Smock told The Associated Press."

As the local report noted, the Associated Press appears to be the source about Rojas' immigration status.

Although mental health issues, not immigration status, appears to have directly resulted in the killings, Sacramento County Sheriff Scott Jones, who is running for Congress, says U.S. immigration policies and California’s sanctuary law somehow are to blame for the deadly church shootings.

"They’ll call me racist and evil," Jones wrote in a Facebook post. "But let me be perfectly clear, there is only ONE thing that allowed this horrific tragedy to occur with certainty: the deplorable state of our national immigration policies, and California’s Sanctuary State Laws."

The killings of the young people in a church by all appearances are a tragedy. We all should think about how it happened and how such tragedies could be avoided. For example, mental health crisis services are not as well funded and accessible as they perhaps should be. Oddly, rather than focus on mental health, news agencies have been broadcasting the father's immigration status and tapping into passions for the purpose of exploitation. President Trump tapped into similar passions, for example, characterizing Mexican immigrants as "criminals" and "rapists."   

The truth of the matter is that Mora's immigration status had absolutely nothing to do with his criminal acts.

Although immigrants commit crimes, studies consistently show that immigrants commit crimes at lesser rates than native born U.S. citizens. News stories that focus on immigration status of alleged criminal perpetrators help reinforce stereotypes that immigrants are predisposed to crime, which is simply not true.  

Immigrant rights advocates do not claim that immigrants who commit crimes should not be held accountable. No one could reasonably say that the perpetrator of a crime like that which occurred in the Sacramento church -- immigrant or not -- should not face criminal charges. With the alleged perpetrator dead, that is not possible in this case. Rather than chase immigration ghosts, we should think hard about how we can act to avoid tragic deaths of young people in the future.  

[Cross-posted from The Hill]

By Kevin R. Johnson

As the Biden administration completed its first year, a flurry of news reports highlighted the bipartisan disappointment with its record on immigration. While liberals objected to the continuation of some of former President Trump’s policies, such as closing the U.S. borders, conservatives alleged that President Biden has embraced “open borders.”   

The criticisms directed at Biden are not entirely fair. Consider the immigration situation that he inherited in January 2021. Trump had dedicated four years to restrictive immigration measures like no president in modern U.S. history. To that end, policy after policy was put into place. Reversing course in a massive federal bureaucracy is not something that can be done overnight — or even in a year.   

Additionally, four years of tough measures and verbal attacks on immigrants did not solve the nation’s immigration problems, but arguably, made them worse. The Trump administration’s efforts ensured that the longstanding and serious immigration problems remained for the new administration: Approximately 11 million undocumented migrants lived in the country before — and after — the Trump presidency.

With the election of Biden, hope sprang eternal among immigrants’ rights activists. The truth of the matter is the Biden administration has dismantled some harsh Trump immigration policies. Gone are the Muslim ban and immigration raids on 7-Eleven convenience stores and state courthouses. Vitriol about immigrants no longer comes from the White House and the Biden administration has brought rationality to the discussion of federal immigration policy. In that vein, Vice President Kamala Harris has started a discussion of long-term solutions to stem migration flows from Central America.   

The administration has also faced resistance in its efforts to change the direction on immigration. For example, the courts have rejected attempts to reopen to new applicants the Deferred Action for Childhood Arrivals (DACA) policy, which provides relief to undocumented young people, or to dismantle the “Remain in Mexico” policy requiring asylum seekers to wait in Mexico while their claims are being decided. Republicans have adamantly fought against any effort by the Biden administration to moderate the harsh measures embraced by Trump. 

That said, if one is truly interested in immigration change, the appropriate measuring stick is not what Biden did in year one but what Congress has failed to do for decades — pass meaningful immigration reform. Democrats and Republicans repeatedly claim that the current immigration system is “broken” but have done absolutely nothing to fix it. Presidents Bush, Obama and Biden have been unable to move Congress to pass reform legislation. Early in Biden’s term, the U.S. Citizenship Act was introduced in Congress. The bill, backed by the president, has languished in Congress.  

Reform is long overdue. The comprehensive U.S. immigration law, the Immigration and Nationality Act of 1952, was forged at the height of the Cold War and designed to exclude and deport communists. Although amended on many occasions, it focuses more on keeping people out than letting people in. Economic and humanitarian concerns, not fears of the spread of communism, must be the touchstone for the immigration laws of the 21st century.  

Immigration solutions need long-term blueprints most appropriately written by Congress, not quick fixes by a president. For example, economic development and building political institutions in Central America that diminish migration pressure take time and congressional appropriations. Effective efforts cannot realistically be achieved in one year by a new president.  

The bottom line is that the nation’s immigration issues can only be effectively addressed if Congress engages in the serious and difficult task of formulating long-term solutions and approaches that outlast any president. In a time of political discontent, that is no small feat.   

But, there are much-needed reforms that Congress could make to the U.S. immigration system. To start, Congress could provide a path to durable legal immigration status for DACA and Temporary Protected Status (TPS) recipients, as well as for other undocumented immigrants.  

Lawmakers can work to restructure the immigration court system, which is poorly funded, inadequately staffed, lacks independence, and has a backlog of more than 1.5 million cases. The visa system needs reforms to eliminate visa backlogs and to allow for sufficient admission of immigrants to satisfy U.S. labor and family reunification needs.   

Congress needs to create a system that is fair to immigrants and allows for effective enforcement, not a misguided border wall on the U.S./Mexico border, which will cause more deaths but not halt migration.  

And finally, the dehumanizing term "alien," which has helped to obscure and rationalize the treatment of people inconsistent with our constitutional values, needs to be removed from U.S. immigration laws.   

Congress will, at some point, meaningfully address immigration reform. The sooner it does, the sooner the nation will begin the process of moving forward. One president can only be reasonably expected to do so much.

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

The big Supreme Court news yesterday was Justice Stephen Breyer's announcement of his decision to retire and that President Biden will have the opportunity to nominate a replacement. 

In my mind, one of Justice Breyer's memorable immigration opinions is his majority opinion in Zadvydas v. Davis (2001), which reasoned that the prospect of indefinite detention of a noncitizen would raise "serious" constitutional questions.  He wrote "[b]ased on our conclusion that indefinite detention of aliens...would raise serious constitutional concerns, we construe the statute to contain an implicit `reasonable time' limitation, the application of which is subject to federal-court review."  Contrary to the teachings of the plenary power doctrine, which directs the courts to defer to the immigration judgments of the President and Congress, Justice Breyer did not show special deference to the U.S. government's immigration decisions.  

As immigration scholars know, Zadvydas is in tension with the Court's subsequent decision in Demore v. Kim (2003), in which Chief Justice Rehnquist was considerably more deferential to the U.S. government's immigration detention decisions.  The dueling decisions continue to be invoked in the immigrant detention cases coming before the Court, including in a pair of cases argued earlier this month.  

In the next few weeks, the ImmigrationProf blog will offer a closer look at Justice Breyer's immigration opinions.  Stay tuned.

[Cross-posted from Daily Journal]

By Kevin R. Johnson

Law school deans often spend their days thinking about rather ordinary matters, such as tuition and finances, admissions, law student job placement, school rankings, and bar passage rates. But with the election of Donald Trump deans experienced something extraordinary that goes to the very core of the mission of law schools. 

Over four tumultuous and contentious years, President Donald J. Trump's approach to governing, perhaps unintentionally, reinforced the importance of the fundamental nature of legal education in a democratic society. 

As one would expect, the Trump administration's repeated dismissal of the facts and the law had consequences. The nation watched with disbelief as a historic event unfolded at our nation's capitol on Jan. 6, 2021. President Trump's baseless allegation that the 2020 election was stolen, repeated in a speech only minutes before violence broke out, directly led to an armed insurrection by white supremacists in Washington D.C. Some observers characterized the violence as an attempted coup d'état.

But the assault on our legal institutions, legal analyses and the rule of law started long before the insurrection. The election of President Trump had impacts that reverberated through law schools across the United States. The early years of the Trump presidency saw the so-called "Trump Bump” in the number of law school applications. Many law school applicants reported an expressed interest in going to law school so they could challenge the existential threat to civil rights of the Trump administration.

Law faculty responded. At UC Davis, for example, Professor Elizabeth Joh released a podcast “What Trump Can Teach Us About Con Law.” Professor Carlton Larson provided expert opinions to the Washington Post, New York Times and other news organizations about whether the president’s conduct amounted to treason.

In addition, our faculty found teaching immigration law more relevant than ever. Consistent with the president's propensity for making racist statements, the Trump administration put into place a staggering array of immigration policy initiatives, including, but not limited to the infamous policy of separating migrant children from their parents and the "Remain in Mexico" policy, both of which applied almost exclusively to Central America.

Shortly after the announcement of President Trump’s Muslim ban, students and faculty raced to airports to assist noncitizens. Student interest in civil rights and immigration spiked. Our clinics provided vital information to immigrants in the crosshairs of the Trump administration’s immigration policies. Students in real time could see the significance of lawyering skills.

A much more subtle, yet potentially far-reaching, change emerged from the chaos generated by President Trump's approach to policymaking and governing generally.

Consistently playing fast and loose with the facts and law like no other modern president, Trump effectively placed into question the basics of legal analysis — and thus the core of legal education. Careful treatment of the facts and application of the law is the bread-and-butter of a legal education. They were not, however, characteristic of the president's partisan approach to many policy issues. He misrepresented facts and regularly questioned, if not subverted, the law and the courts. Moreover, all too often, the Trump administration allowed racial passions to dominate policymaking.

To illustrate the need for rigorous policy analysis, consider the nation's general reckoning with systemic racial injustice like the controversial issues that dominated the headlines in 2020, with police killings of African-Americans crying out for immediate transformative change.

As seen in his response to the Black Lives Matter movement, Trump regularly denigrated legal requirements and took extraordinary policy steps in violation of the law. Contrary to fundamental understandings that the action was unlawful, the president sent the U.S. military into the streets of Washington D.C. to control crowds protesting in the summer of 2020. Similarly, he took the extraordinary step — bordering on the unlawful if not downright illegal — of deploying Department of Homeland Security officers to disperse protesters in Portland, Oregon and Oakland, California. At frequencies and ways not seen in any other modern presidential administration, Trump pushed policy to the limits of the law and well beyond. In some instances, the Courts including the Supreme Court, intervened. The Court, for example, rejected the Trump administration’s partisan effort to add a citizenship question to the 2020 Census.

As law professors, we must translate policies in action into education. Racism has a lengthy pedigree in U.S. history. Critical race theory has offered invaluable insights on the centrality of race historically to the law as a tool to maintain white supremacy. It has identified how race has indelibly influenced the development of the criminal justice system in the United States and its devastating impacts on communities of color. Racism obviously motivated Jim Crow and institutionalized racial segregation. It rationalized the suppression of Black voters. It led to racist immigration laws.

The powerful insights of CRT shed light on these racist milestones in U.S. history. The contemporary reckoning with systemic racism has fueled efforts by law schools to incorporate racial justice and CRT into the curriculum.  Not surprisingly with the Trump administration’s assault on civil rights, students have demanded more CRT and race in the law school curriculum.

Despite the powerful insights of CRT, the Trump administration sought to halt efforts to incorporate the teachings of CRT on racial justice into the workings of the U.S. government. Efforts at teaching the nation's unfortunate racial history were challenged as well. The controversy sparked by Trump directly fueled passionate and divisive efforts to outlaw the teaching of CRT in the public schools.

The Trump administration's approach to public policy issues taught a valuable cautionary lesson: law schools should not abandon the basic emphasis on educating students to rigorously analyze the facts and identify the applicable law to reach a conclusion.

Kevin R. Johnson is dean of UC Davis School of Law and the author of a chapter in “Beyond Imagination? The January 6 Insurrection” (2022), a book by law deans.