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March 24, 2017

The Complexities of a “Motive” Analysis in Challenging President Trump’s Executive Order Regarding Entry to the United States

By Vikram Amar and Alan Brownstein

Cross-posted from Justia.com:

One of the vexing legal questions raised by President Trump's original and revised executive orders concerning entry into the United States by nationals of several Middle Eastern and African countries is whether and how courts ought to take into account the subjective motives behind the executive order, whether or not these motives are reflected in the text of the orders themselves. Many people think of the executive orders as "Muslim bans"-even though there is no mention of Muslim peoples in the orders themselves-because they credit rhetoric prior to the executive orders that may tend to suggest anti-Muslim sentiment has been on the president's mind as he has crafted these entry limitations. (For these purposes critics are asserting that a desire to exclude persons from one religious group would be impermissible, although in the immigration setting that proposition might be a contested question.)

Permissible (and Impermissible) Uses of Motive to Strike Down Laws

Consideration of direct evidence of impermissible subjective motive has been a confused area of constitutional law. Courts have often expressed-as the Supreme Court did in United States v. O'Brien, the case involving a famously unsuccessful free speech challenge to a federal law prohibiting destruction of draft cards-a reluctance to use extrinsic proof of invidious motive to strike down laws that would otherwise pass constitutional muster. Courts have offered a variety of reasons for their wariness to look into motive. One is that courts would be in the position of accusing co-equal branches of pretext and dishonesty (or at the very least unawareness of their own true motivation), and that can create friction between the branches. (Think of how courts have reacted to President Trump's allegations of judicial dishonesty.) Another is the idea that a president or legislature whose action is struck down because of a bad motive can simply reenact the policy for a good motive, in which case courts will have to uphold the new enactment, raising the question why it was worth the hassle to invalidate the action in the first place. (One rejoinder to that is that courts won't always be convinced that the second enactment is taint-free, and may not uphold it. Another is that if the second enactment is adopted for pure rather than invidious reasons, it is a qualitatively different enactment insofar as motive, and the way the polity understands it, is an essential part of a law: Justice Holmes once reminded that even a dog knows the difference between being kicked and being tripped over.)

Yet another reason proffered for refraining from motive analysis is that the motive of many legislative bodies is hard to discern-in Congress, there may be hundreds of motives of hundreds of legislators in enacting a particular law. For these and other reasons, even when some justices want to look at subjective evidence of motivation (as with Justice Kennedy's opinion in the Florida case involving an anti-animal-sacrifice law that was struck down for violating free exercise of religion principles), other justices decline to join them in doing so.

Notwithstanding these concerns, however, courts have been willing to accept direct proof of impermissible motive in certain doctrinal areas. Perhaps the most prominent is the equal protection norm of the Fourteenth and Fifth Amendments. When a facially neutral law that draws no problematic classifications between groups can be shown to have a disparate impact against certain classes, and when there is strong enough evidence that a desire to harm those groups was a driving factor behind the law's enactment, courts have been willing to strike those laws down. The evidentiary threshold a challenger must satisfy is high, but at least the courts are open to the evidence if a strong case is made.

A second (and perhaps similarly equality-driven) area of jurisprudence where the Court has made use of subjective evidence of improper motive is the Establishment Clause of the First Amendment. Unlike in the Free Exercise Clause setting mentioned above, the Court in several Establishment Clause rulings has explicitly required that government's motive be either secular, or at the very least not a desire to favor some sects over others. In Wallace v. Jaffree, the Court struck down an Alabama law mandating a moment of silence at the beginning of public school classes because the Court concluded, based in significant measure on historical evidence and legislative history, that the law was a backdoor attempt to reintroduce prayer in the schools. And in McCreary County v ACLU of Kentucky, the Court invalidated the placement of a Ten Commandments display on public property, again in part based on a conclusion of improper motives of religious favoritism. These are the cases (again, assuming they apply in the immigration setting) on which challengers to President Trump's executive orders have been relying.

In short, courts appear to weave their way through many complex factors in evaluating claims based on invidious or impermissible motives. Even in equal protection cases, where the Court has remained nominally open to claims of invidious motivation, the size of the decision-making body may be critical to whether a case can be made. As the Court explained in Hunter v. Underwood, "the difficulties in determining the actual motivations" of a governing institutional body increase substantially when a claim is brought against the U.S. Congress as opposed to a county board of commissioners.

Thus, the nature of the constitutional claim, the size of the decision-making body, and the persuasiveness of the extrinsic evidence of impermissible motive will all be considered, with different factors controlling the Court's analysis in various cases. In Hunter, for instance, the Court struck down on equal protection grounds a provision of the 1901 Alabama Constitution denying the right to vote to any person convicted of a crime involving moral turpitude, because the Court found that the all-white state constitutional convention that adopted the provision did so with the intent of disenfranchising black residents in particular. The large size of the convention did not insulate it from an equal protection challenge given the strength of the historical evidence establishing the invidious motivation of the convention participants.

On the other hand, the size of the decision-making body may have been critical in some free speech cases. As noted, the Court in O'Brien downplayed the idea that an act of Congress could be struck down because of the intent of some legislators to enact it for the purpose of suppressing protected speech. Yet in cases involving much smaller decision-making bodies, such as Mt. Healthy City School District v. Doyle, the Court recognized that a teacher could assert a valid free speech claim challenging the school board's decision not to rehire him if the teacher could show the board was punishing him for protected speech in which he had engaged.

President Trump's Executive Orders Restricting Immigration

Viewed against this complicated and somewhat indeterminate background, several factors could be relevant to the challenges to President Trump's revised executive order that are based on an alleged intent to further a constitutionally impermissible purpose-religious discrimination against a particular faith community. To begin with, the authority to issue an executive order rests with one person alone, the President of the United States. Thus, struggling to determine the intent of a large body is not a problem here.

Further, the challenge to the order is based on the Establishment Clause, an area of law in which there is significant precedent accepting direct inquiry into government motive as the basis for evaluating and invalidating state action. Indeed, this dimension of the Establishment Clause, the prohibition against discrimination against minority faiths, overlaps and resonates with equal protection doctrine. As we have explained, there is probably no area of constitutional law in which direct inquiry into motive has been more accepted than equal protection jurisprudence adjudicating claims against invidious discrimination.

Finally, it should be clear that attempts to structure a law to mask improper intent do not always insulate impermissibly motivated state action from constitutional review. In Hunter, historians documented how the Alabama constitutional convention had an anti-black agenda on their minds, even though the disenfranchisement provision in question was written more broadly and more neutrally. Thus, the fact that the president might have drafted the new order to scrupulously avoid reference to religious discrimination, while relevant, is not necessarily dispositive.

Other Factors at Play

There are, however, several open legal questions that may very well support a court's decision to uphold the President's order. One large question, noted above, is whether domestic Establishment Clause norms apply with full force in the immigration setting. In Kleindienst v. Mandel, the Court wrote: "We hold that when the Executive exercises [the power to exclude an alien] on the basis of a facially legitimate and bona fide reason, the courts will n[ot] look behind the exercise of that discretion . . . ." Ultimately, succeeding with an Establishment Clause claim with require grappling with this high level of judicial deference.

Another issue is whether statements made during a campaign by a candidate for office should be considered reliable evidence as to the official's intent after he is elected and adopts policies. Statements made during the heat of a campaign are arguably different than statements made during official deliberations by elected representatives. There is certainly a plausible argument that what is said during a campaign stays in the campaign and does not carry over as an indication of intent after an official is elected.

While this contention has considerable force, there is an argument on the other side. Much of what an elected official says has a dual audience; the government actors he is trying to influence to secure adoption of a regulation and the constituency who elected him whose support will be necessary if he is to stay in office. Elected officials are always at least in part in campaign mode. It might be difficult to state a clear rule about what evidence of invidious intent will be inadmissible campaign rhetoric and what may be considered to be probative in the adjudication of constitutional claims. This is particularly the case when one recognizes that one candidate campaigning for office is often an incumbent whose campaign and "official" statements are inherently intertwined.

Two other related issues may be even more difficult to resolve. As noted earlier, one argument against invalidating a regulation based on direct inquiry into legislative motive is that the same law in most cases could have been adopted for legitimate reasons too. The adjudication of the president's executive order presents a stark example of this problem. What evidence must be presented by the government to convince a court that, even if President Trump did or does harbor some anti-Muslim sentiment, the same order would have been issued even in the absence of such intent? If any established impermissible intent ended up not being a "but for" cause of the executive order, then it should not be a basis of invalidation. But the government may have to present a fair amount of evidence of objective reasonableness to rebut the influence of invidious motives-if the courts recognize and care about such motive claims in this setting.

Finally, if an impermissible motive was a driving force behind the initial order, has it dissipated such that the revised order should be free from its taint? Time would obviously be one factor to take into account in answering such a question. But how much time? And what other factors? Changes in the contours of the policy that seek to make it more neutral? A formal acknowledgement by the president that he shouldn't take into account religious favoritism? The fact that the regulation was evaluated and supported by government officials and agencies other than those who initially endorsed it for impermissible reasons? These are complex questions that appellate courts may have to address in this setting if, and this is a significant if, they allow a motive-based Establishment Clause challenge to immigration orders to go forward.

 

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.

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.

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/