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June 28, 2017

Media Advisory: UC Davis School of Law to present U.S. Supreme Court Year in Review (2016 term)

I am so pleased that the School of Law is presenting a panel discussion next week on the 2016 Supreme Court term. Special thanks to Marc Levinson '73 and the Sacramento office of law firm Orrick, Herrington & Sutcliffe LLP for hosting us.

Here is the media advisory that just went to the press this week. Note the line that reads, "UC Davis School of Law hopes to make this the first of an annual series of 'U.S. Supreme Court Year in Review' events"!

***

Distinguished Panel of UC Davis Experts to Lead Discussion on U.S. Supreme Court
Topics to include major decisions and the addition of Justice Gorsuch to the Court during the 2016 term.

What: "U.S. Supreme Court Year in Review" event, where leading experts on the U.S. Supreme Court will hold a lunchtime panel discussion on the 2016 term

Why: To inform the local legal community about the latest news from the high court, including detailed analysis of its most important decisions of the term on topics including immigration, criminal law, education, and more. Panelists will also discuss the impact of the new jurist on the bench, Justice Neil Gorsuch. UC Davis School of Law hopes to make this the first of an annual series of "U.S. Supreme Court Year in Review" events.

When: Friday, July 7, from 12:00 to 1:30 P.M.

Where: The law firm of Orrick, Herrington & Sutcliffe LLP, 400 Capitol Mall, Suite 3000, Sacramento

Who: A panel of UC Davis law faculty and an attorney from Orrick's San Francisco office.

  • Kevin R. Johnson, Dean at UC Davis School of Law
  • Carlton F.W. Larson, Professor at UC Davis School of Law
  • Aaron Tang, Professor at UC Davis School of Law and former clerk for U.S. Supreme Court Justice Sonia Sotomayor
  • Easha Anand, Associate at Orrick (San Francisco) and former clerk for U.S. Supreme Court Justice Sonia Sotomayor
  • Madhavi Sunder, Senior Associate Dean at UC Davis School of Law

One-on-one interviews with the panelists will be available after the event.

The audience includes members of Sacramento's legal community, who pre-registered to attend.

For more information, contact Karen L. Charney at klcharney@ucdavis.edu.

####

June 27, 2017

Supreme Court Ends 2016 Term, Agrees to Hear Travel Ban Cases, Vacates and Remands Cross-Border Shooting Case, Punts in Two Immigration Cases

[Cross-posted from Immigration Prof.]

The Supreme Court's 2016 Term has come to an end.  Today, the last day of the Term, the Court in the biggest news agreed to review the travel ban decisions in the 2017 Term. In a per curiam order, the Court stayed the injunction in part.  Justice Thomas, joined by Justices Alito and Gorsuch, concurred in part and dissented in part.   He would have stayed the injunctions in full.   

In Hernandez v. Mesa, which involved a cross border shooting by U.S. immigration enforcement officer of a young Mexican national, the Court in a per curiam pinionr vacated and remanded the case to the court of appeals to consider whether the family could sue for violation of the Fourth Amendment under the Supreme Court's 1971 Bivens decision.  The order, which is analyzed here, observed that the case involved "a heartbreaking loss of life."  Justice Gorsuch did not participate in the case.

The Court ordered reargument in two immigration cases.  

In Jennings v. Rodriguez  (reviewing the legality of detention of immigrants without a bond hearing) and Sessions v. Dimaya (reviewing a Ninth Circuit decision, written by Judge Stephen Reinhardt, striking down a criminal removal provision as unconstitutionally vague), the Court will hear rearguments next fall.   The Court likely was split 4-4 in these cases  Justice Gorsuch will break the tie.

The Court earlier this Term decided four decisions touching on immigration:

1.  Sessions v. Morales-Santana (invalidating gender distinctions favoring women over men based on antiquated on stereotypes in derivative citizenship laws).

2.  Esquivel-Quintana v. Sessions  (interpreting criminal removal provision).

3.  Maslenjak v.. United States  (denaturalization).

4.  Lee v. United States  (ineffective assistance of counsel claim based on erroneous advice on immigration consequences of guilty plea).

The Court agreed to review is seven immigration-related cases  in total in  the 2016 Term, which is a relatively large number. Two  (Maslenjak and Santana-Morales) touched on citizenship and denaturalization.  Five (Jennings, Dimaya, Esquivel-Quintana, Lee v. U.S.. Hernandez v. Mesa) involved immigration enforcement, which should not be surprising in light of the Obama administration's immigration enforcement push.  Increased immigration enforcement under President Trump will likely lead to a steady stream of immigration cases to the Supreme Court.

June 12, 2017

Ninth Circuit Joins the Fourth Circuit in Rejecting Trump's Revised Travel Ban

[Cross-posted from Immigration Prof.]

By Kevin R. Johnson

It is a big immigration news day!

Agreeing with the Fourth Circuit, the Ninth Circuit today in a per curiam opinion (Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez) joined the Fourth Circuit and delivered the Trump administration's revised travel ban another setback.  Here is the introduction (and conclusion):

We are asked to delineate the statutory and constitutional limits to the President’s power to control immigration in t his appeal o f the district court’s order preliminarily enjoining two sections of Executive Order 13780 (“EO2” or “the Order”) , “Protecting the Nation From Foreign Terrorist Entry Into the United States. ” The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens , and to take actions to protect the American public. But immigration, even for the President, is not a one - person show. The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States. ” Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order preliminarily enjoining Sections 2 and 6 of the Executive Order.

The court rested its conclusion on statutory grounds -- that the requirements of Immigration and Nationality Act § 212(f), 8 U.S.C. § 1182(f) had not been satisfied -- and did not reach the Establishment Clause holding of the district court.  At the outset, it found that standing was established and that the case was "ripe" for review. 

The court emphatically rejected the notion that the travel ban was not subject to judicial review:  "Whatever deference we accord to the President's immigration and national security judgments does not preclude us from reviewing the policy at all. [citations omitted] . . . . We do not abdicated the judicial role, and we affirm our obligation `to say what the law is' in this case.  Marbury v. Madison, 5 U.S. 137, 177 (1803)." (Slip opinion, p. 32).  The court stated that "[i]n conclusion, the Order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality."  Slip op., p. 43.

The court summarizes its order in this concluding paragraph:

We affirm in part and vacate in part the district court’s preliminary injunction order. As to the remaining Defendants, we affirm the injunction as to Section 2(c), suspending entry of nationals from the six designated countries for 90 days; Section 6(a), suspending [the U.S. Refugee Program] for 120 days; and Section 6(b), capping the entry of refugees to 50,000 in the fiscal year 2017. We vacate the portions of the injunction that prevent the Government from conducting internal reviews, as otherwise directed in Sections 2 and 6, and the injunction to the extent that it runs against the President. We remand the case to the district court with instructions to re-issue a preliminary injunction consistent with this opinion. (footnote omitted).

June 12, 2017

Breaking News: Supreme Court Holds that the Constitution Applies to Gender Distinctions in Derivative Citizenship Laws

[Cross-posted from Immigration Prof.]

By Kevin R. Johnson

This morning, the Supreme Court decided Sessions v. Morales-Santana and held that the Constitution applies to gender distinctions in the derivative citizenship laws.  Justice Ginsburg, joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, wrote the opinion for the Court.  Justice Thomas, joined by Justice Alito, concurred in the judgment in part.  Justice Gorsuch took no part in the consideration or decision in the case.

The issues in the case were:  1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.

The U.S. Court of Appeals for the Second Circuit ruled that the laws governing citizenship for the children of unmarried parents violated the father’s constitutional right to be treated the same as a U.S.-citizen mother. (The statute was amended in 1986 to reduce the number of years that a father must have lived in the United States, but it continues to apply different standards for men and women.) The court of appeals declared Morales-Santana a U.S. citizen.

In previous cases raising similar issues, a majority of the justices had not been in agreement. 

Justice Ginsburg noted that the statutory provisions in question "date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are."  (citations omitted).   Gender distinctions now are subject to heightened scrutiny under the Equal Protection Clause.  "Prescribing one rule for mothers, another for fathers, § 1409 is of the same genre as the classifications we [have] declared unconstitutional . . . ." In the majority's view, the gender distinctions are "stunningly anachronistic" and violate the Equal Protection guarantee.

The majority, however, declined to rewrite the statute.  That is within the purview of Congress.  In the interim, the Court agreed with the U.S., government and ruled that a five-year requirement under another subsection of the statute should apply prospectively to children born to unwed U.S.-citizen mothers.

Justice Thomas, concurring in part in the judgment, would not decide the constitutional issues but would simply find that the Court could not provide the relief sought by Morales-Santana.

Immigration law has been exceptional in its immunity from judicial review.  Sessions v. Morales-Santana is another step down the road toward applying ordinary constitutional norms to the immigration and nationality laws. Six justices agreed that the Equal Protection Clause applied to gender distinctions in the derivative citizenship laws.  We shall see whether the decision marks the beginning of a trend in this Term's immigration decisions -- several that raise constitutional questions.

May 31, 2017

Opinion analysis: Justices continue to apply ordinary modes of statutory interpretation to the U.S. immigration laws

(Cross-posted from SCOTUSblog.)

By Kevin R. Johnson

With the new Trump administration, immigration has been in the national news. President Donald Trump and Attorney General Jeff Sessions have emphasized that the U.S. government will target "criminal aliens" in its removals. At various times, Trump has focused on crimes committed by Mexican immigrants. In the first of a number of immigration decisions from the 2016 term, the Supreme Court today decided its first crime-based removal decision in the new administration, Esquivel-Quintana v. Sessions. The case involved an immigrant from Mexico convicted of what could be viewed as a "sex crime." The decision in favor of the lawful permanent resident - written by Justice Clarence Thomas for a unanimous court (minus Justice Neil Gorsuch, who did not participate) - might be surprising to some observers.

The facts of the case are relatively simple. When Juan Esquivel-Quintana, a lawful permanent resident from Mexico, 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. Section 1101(a)(43) of the Immigration and Nationality Act 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.

As described by Thomas, the question before the court was "whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA." The court's answer was brief and straightforward: "We hold that it does not."

The court first reiterated the standard test for determining whether an immigrant's "conviction qualifies as an aggravated felony," as set forth in several recent cases:"[W]e 'employ a categorical approach by looking to the statute ... of conviction, rather than to the specific facts underlying the crime.'" Under the categorical approach, "we ask whether the state statute defining the crime of conviction categorically fits within the 'generic' federal definition of a corresponding aggravated felony." In other words, "we presume that the state conviction "rested upon ... the least of th[e] acts" criminalized by the statute, and then we determine whether that conduct would fall within the federal definition of the crime." Under that approach, Esquivel-Quintana's state conviction is "an 'aggravated felony' under the INA only if the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor."

That was not the case here, the court concluded. After examining Section 1101(a)(43)(A) of the INA, Thomas observed that the statute's requirement that the sexual abuse be "of a minor" means that "the statute of conviction must prohibit certain sexual acts based at least in part on the age of the victim." The court pointed to statutory rape laws as a prime example of "this category of crimes," and relied on "reliable dictionaries" to define the "'generic'" age of consent in those laws as 16. The court rejected the "everyday understanding of 'sexual abuse of a minor'" offered by the government, which would have included activity involving victims up to the age of 18, pointing out that "the Government's definition turns the categorical approach on its head" by conditioning the crime on the particular laws of each state."

Moving to a consideration of the INA provisions surrounding Section 1101(a)(43)(A), the court emphasized that the statute's definition of "aggravated felony" includes murder and rape, and that the "structure of the INA therefore suggests that the sexual abuse of a minor encompasses only especially egregious felonies." According to the court, related federal statutes as well as state criminal codes also support the conclusion that "for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16." "Because the California statute at issue in this case does not categorically fall within that definition, a conviction pursuant to it is not an aggravated felony under §1101(a)(43)(A)."

By resolving the case on statutory grounds, the court avoided the more far-reaching questions raised by the majority and dissent in the court below. Thomas stated: "We have no need to resolve whether the rule of lenity or Chevron receives priority in this case because the statute, read in context, unambiguously forecloses the Board's interpretation. Therefore, neither the rule of lenity nor Chevron applies." A decision on either of those grounds would have had more far-reaching implications for immigration law than strict reliance on the interpretation of the statutory phrase "sexual abuse of a minor."

Esquivel-Quintana v. Sessions fits in neatly with the court's recent immigration decisions, such as Mellouli v. Lynch in 2015 and Moncrieffe v. Holder in 2013, which also applied ordinary modes of statutory interpretation to the immigration laws. In a series of crime-based removal decisions, the court has engaged in close parsing of the language of the statutory provisions in question. This approach is no different than that employed by the court in other cases. Although not breaking new ground today, the court continues to move forward in applying ordinary analytical approaches to immigration law, which historically had been in certain respects "exceptional" in the amount of deference given to the Board of Immigration Appeals. Immigrants have prevailed more often than not in the court's recent decisions as the U.S. government has pressed cases, like Esquivel-Quintana, which the court found to be unsupported by the immigration statute.

 

May 26, 2017

The Shifting Ground of Redistricting Law

(Cross-posted from Balkinization)

Chris Elmendorf

The tectonic plates of redistricting law are starting to slide—and quickly. Earlier this year, a three-judge district court struck down Wisconsin’s state legislative map as an unconstitutional partisan gerrymander, the first such holding by any federal court in more than a generation. Federal courts in Maryland and North Carolina have also issued supportive rulings in current partisan gerrymandering cases, allowing the plaintiffs' claims to proceed to trial.  

Meanwhile, yesterday’s Supreme Court decision in Cooper v. Harris, the North Carolina racial gerrymandering case, augurs a major recontouring of the redistricting landscape as the Equal Protection plate comes crashing into the Voting Rights Act (VRA) plate. Section 2 of the VRA has long been understood to require the drawing of electoral districts in which racial minorities can elect their “candidates of choice” in locales where white and minority voters have very different political preferences. Yet since the 1990s, the equal protection clause has required strict scrutiny of any district in whose design race was the “predominant factor.” The Constitution disfavors the intentional sorting of voters among districts on the basis of their race. Until recently, however, it was widely thought that the “predominant factor” test for racial sorting / equal protection claims would be met only as to districts in which both (1) minority citizens comprise a majority of the voting-age population, and (2) the district’s boundaries are wildly incongruent with “traditional districting principles,” such as compactness and respect for local government boundaries.

But in Bethune Hill v. Virginia, decided two months ago, the Supreme Court clarified that the “predominant factor” test is satisfied whenever race was the overriding reason for moving a group of voters into or out of a district, irrespective of the district’s apparent conformity to traditional criteria. Then, in the unanimous portion of Cooper v. Harris, the Court applied strict scrutiny to a district because the state had “purposefully established a racial target” for its composition, and selectively moved heavily black precincts into the district to achieve that target. In the Republican redistricting plan at issue in Cooper, the target was 50% black. In a Democratic gerrymander of North Carolina, the target would probably be smaller, perhaps 40% black, to more efficiently distribute reliable black Democratic voters while continuing to enable the election of some black candidates. But the actual threshold (50% vs. 40%) seems legally irrelevant.

How then is a state to comply with Section 2 of the Voting Rights Act, which, as noted above, has long required states to create districts with enough minority voters (a "racial target") to consistently elect minority “candidates of choice.” One unhappy possibility is that the Court will simply undertake to free redistricters from the latter obligation, holding Section 2 unconstitutional or narrowing it beyond recognition on the basis of an asserted conflict with the anti-sorting equal protection principle. 

Another possibility is that federal courts will require redistricters to follow a path established by Alaska's Supreme Court as a matter of state constitutional law. In Alaska, the state must first redistrict blind to race, then evaluate the resulting map for compliance with Section 2, and then make whatever minimal (?) changes are necessary prevent a Section 2 violation. Cooper v. Harris hints at this approach. Striking down District 1, the Court explained: "North Carolina can point to no meaningful legislative inquiry into what it now rightly identifies as the key issue: whether a new, enlarged District 1 [enlarged to comply with one person, one vote], created without a focus on race but however else the State would choose, could lead to § 2 liability.”

Insofar as today’s decision in Cooper advances the Alaska framework, the million dollar question will be how a state redistricting authority must assess its initial race-blind map for compliance with Section 2. Here the law could evolve in any number of directions, but given the Supreme Court’s aversion to racial targets, the Court may well allow states to count for Section 2 compliance purposes any district in which minority voters are likely to wield some influence (say, any district with a Democratic majority, or any district in which Democrats would lose their working majority if no minority voters went to the polls). This would represent a dramatic change in the law of Section 2, since until now nearly all courts have focused on the question of whether districts enable the election of authentic candidates of choice of the minority community, rather than minimally acceptable (and usually white) Democrats.

Of course, all of this is somewhat speculative. Writing at SCOTUSblog, Kristen Clarke and Ezra Rosenberg argue that Cooper and Bethune Hill, read together, require plaintiffs bringing a racial sorting / equal protection claim to show (as the trigger for strict scrutiny) quite a bit more than the existence of a firm racial-composition target plus the movement of voters to achieve the target. I’m not convinced, but for now, there’s enough looseness in the doctrine for lower courts to go either way on this question. 

What is clear is that the Supreme Court, unhappy about racial sorting, is on guard against pretextual justifications for the practice. As Justice Kennedy for the Court remarked in Bethune Hill, “Traditional redistricting principles . . . are numerous and malleable . . . . By deploying those factors in various combinations and permutations, a State could construct a plethora of potential maps that look consistent with traditional, race-neutral principles. But if race for its own sake is the overriding reason for choosing one map over others, race still may predominate.”

Going forward, any redistricters who undertake to draw districts with a racial-composition target (majority-minority or otherwise) would do well to announce that the target is merely one objective to be considered and balanced alongside many others, rather than a categorical command. The crossing of fingers is also recommended.
May 16, 2017

Supreme Court Immigration Watch: The 2016 Term -- Look Out for Six Decisions

(Cross-posted from Immigration Prof)

There are a number of immigrations cases currently before the Supreme Court (and here).  We should get decisions by the end of the Term in June and will should get a better idea of how the newest Supreme Court Justice, Neil Gorsuch, looks at immigration law.

The cases before the Court raise a variety of different types of issues.  The decisions could affect the direction of judicial review of the constitutionality of immigration laws and policies.  In recent years, as explained in this article, the Supreme Court has slowly but surely moved immigration law into the mainstream of American jurisprudence. 

The cases, which have been discussed regularly on this blog, include:

1.  Sessions v. Morales-Santana Argued November 2016.  Gender Distinctions in Derivative Citizenship.

Issue(s): (1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.    The Second Circuit, in an opinion by Judge Loheir, found that the gender distinction for citizenship was unconstitutional. 

The Supreme Court has been divided on the constitutionality of gender distinctions in the citizenship laws in previous cases.  See, e.g., Nguyen v. INS (2001); Miller v. Albright (1998).  This case allows the Court to reconsider the issue.

 

2.  Jennings v. Rodriquez Argued November 2016.  Constitutionality of Immigration Detention.

Issue(s): (1) Whether noncitizens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist noncitizens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for noncitizens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the noncitizen is entitled to release unless the government demonstrates by clear and convincing evidence that the noncitizen is a flight risk or a danger to the community, whether the length of the noncitizen’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months. 

The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, affirmed the district court’s permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention.  The panel also held that immigration judges must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class’s request for additional procedural requirements.

 

3.  Sessions v. Dimaya Argued January 2017.  Constitutionality of Criminal Removal Provisions.

Issue(s): Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an immigrant's removal from the United States, is unconstitutionally vague.  In a rare move, the Ninth Circuit, in an opinion by Judge Stephen Reinhardt, stuck down a statute including the reference "crime of violence" as unconstitutionally vague.   The Board of Immigration Appeals had found that  burglary was a "crime of violence" for removal purposes.  Dimaya was a lawful permanent resident from the Philippines who had lived in the United States since 1992. 

 

4.  Esquivel-Quintana v. Sessions  Argued February 2017.  Interpretation of "Sexual Abuse of Minor" for Removal.

Issue:  Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.

 

5.  Hernandez v. Mesa Argued February 2017.  Liability for Cross Border Shooting by Immigration Officer.

This case raises the following questions (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.

 

6.  Maslenjak v. United States Argued April 2017.  Impact of Misrepresentation for Purposes of Denaturalization. 

The denaturalization case raises the question whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.  Amy Howe in a preview to the argument on SCOTUSBlog concludes:

"The stakes in this case are high, not just for Divna Maslenjak but also for the millions of people who became naturalized U.S. citizens in recent years. Most of those naturalized citizens, of course, did not make false statements during the process of securing citizenship. But a ruling in the government’s favor could potentially expose many new citizens to the possibility of losing their right to live in the United States, even if their false statements did not necessarily influence the government’s decision to give them citizenship."

Maslenjak v. United States makes it six immigration cases before the Supreme Court this Term, a large number compared to the   immigration cases reviewed the last few Terms.

***

The Court will consider the six immigration cases against a backdrop of considerable public discussion -- and many legal challenges -- to President Trump's executive orders on immigration enforcement.    The role of the courts in reviewing the immigration actions of the President have been debated publicly over the last few months.

Stay tuned as we will see decisions in those cases, which involve crime-based removals, constitutional challenges to provisions of the Immigration and Nationality Act, a cross-border shooting, deference to agencies, and more.

Part of the reason that we see extreme measures in the immigration laws is the limited scope of constitutional rights of immigrants recognized by the Supreme Court. Historically, under the plenary power doctrine, noncitizens outside the United States have had few, if any, rights to enter the country. In contrast, noncitizens inside the country have seen the steady expansion over time of rights, especially to procedural due process.

Over the last fifty years, the Supreme Court has moved toward a more normal immigration jurisprudence and away from the plenary power doctrine. That trajectory has been marked by the use of ordinary methods of statutory interpretation in interpreting the immigration statute; the Supreme Court also has adhered to ordinary administrative deference doctrines in the review of immigration decisions. Moreover, the Court on a number of occasions has applied routine constitutional avoidance doctrines to avoid invoking the plenary power doctrine, which is out of synch with modern constitutional jurisprudence, and its harsh results. This pattern of avoiding the decision of constitutional questions in ensuring judicial review of immigration matters can be understood as an effort by the Court to avoid invoking the plenary power doctrine and its stark outcomes.

Commentators have observed the slow movement of immigration law toward the mainstream of constitutional jurisprudence. In essence, the plenary power doctrine is slowly but surely eroding away. In a number of cases, the Supreme Court effectively moved toward expanding the rights of noncitizens seeking admission into the United States.] Among other indications, in Kerry v. Din (2012), six Justices found that a State Department consular officer's denial of a visa was subject to rational basis review, which is a move away from the doctrine of consular non-reviewability.

One possibility is that, in the current cases before the Court, the decisions will move us toward a more unexceptional immigration law that is more consistent with general American constitutional law.

President Trump’s immigration initiatives push the envelope of contemporary constitutional norms, virtually daring the courts to address their constitutionality. By taking brash immigration policy measures that test constitutional limits, such as the travel ban and expanded expedited removal, the Trump administration ultimately may force the Supreme Court to reconsider the plenary power doctrine.Conclusion

The aggressive Trump immigration measures likely will continue to generate legal challenges centering on the rights of immigrants. Courts, which have been moving in a direction toward further recognition of immigrant rights for at least a generation, may intervene – as some have already – to curb some of the excesses of the Trump immigration initiatives. However, the long term solution to the problems of the modern immigration system is legislative reform of the immigration law. Deep and enduring reform of the comprehensive immigration statute forged in the Cold War is necessary for the nation to effectively and fairly address the immigration realties of the 21st century.

 In short, the coming weeks may tell us a good deal about the future of immigration law in the United States.  Stay tuned.

 

 

March 27, 2017

Reverse Political Process Theory

This post is about an article entitled Reverse Political Process Theory, which will appear in the Vanderbilt Law Review (forthcoming 2017).

The article is the first of two papers to take up an intriguing phenomenon at the Supreme Court: the Court's recent practice of granting what seems to be special, heightened constitutional protections to politically powerful entities. 

This observation may strike some as counter-intuitive.  After all, when one thinks of political power in constitutional law, the reflexive move is to consider Footnote 4 of Carolene Products and John Hart Ely's political process theory, under which politically powerless discrete and insular minority groups are to receive special constitutional solicitude.  But the reality is that the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. One need only consider as evidence the series of decisions in the late 1970s and 1980s reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, or the Court's more recent decision in Obergefell v. Hodges upholding the right to same-sex marriage based primarily on the fundamental nature of marriage, rather than the political status of gays and lesbians.

I argue in the Article that the Court has gone further than to merely reject the notion that powerless discrete and insular minority groups alone should be entitled to heightened judicial solicitude. In multiple doctrinal areas, the Court has reversed the theory's core prescription by conferring extra constitutional safeguards upon entities that, by any fair accounting, possess an outsized ability to protect their interests through the ordinary democratic process-all the while withholding similar protections from less powerful counterparts.  For example, the Supreme Court has recently granted large corporations a special defense against general personal jurisdiction under the Due Process Clause, allowing powerful, multi-national businesses to evade suit in U.S. forums despite having far more extensive contacts there than small business and individual defendants.  Similarly, the Court has afforded sovereign defendants a far more generous rule when it comes to interpreting waivers of their rights than it has with respect to waivers of rights possessed by (often indigent) criminal defendants.

After identifying these doctrinal developments, the Article offers an evaluation of the Court's long and tumultuous relationship with political process theory. I conclude that even if one opposes the idea of granting heightened constitutional protections to the powerless-perhaps because one believes judges cannot avoid substantive value judgments when deciding which groups are so weak as to warrant extraordinary protection from the democratic bazaar-attention to the political process should still require judges to stay their hand before granting special constitutional treatment to entities that are powerful enough to look out for themselves.

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.