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March 14, 2024

Immigration in the 2024 Presidential Election

[Cross-post from ImmigrationProf Blog]


By Kevin R. Johnson


As the nation heads toward the 2024 election, the presidential race will almost certainly be a rematch between former President Donald Trump and President Joe Biden. A recent poll found that voters believed that immigration – not the economy, health care, abortion, or climate change – is the most pressing issue facing the nation.    


As president, Trump pursued an aggressive immigration enforcement approach, combined with restrictions on legal immigration and fiery helpful rhetoric about immigrants. In running for a second term, he has double-downed on his immigration agenda, promising to step up enforcement and, in ways reminiscent of Hitler’s attacks on Jewish people, condemning immigrants for “poisoning the blood of our community.” 


In contrast, in the 2016 election, Biden ran on a more moderate and conventional platform on immigration. He promised to lift some of President Trump’s tough policies -- and he did. Biden also did not use the hateful anti-immigrant rhetoric that Trump employs to energize and inflame his base.


Here are four ways that a Trump and Biden presidencies might differ on immigration:


1. The Terms of the Debate and Aftermath


Trump: If elected, Trump would likely speak about immigrants as he did his first time around, as “criminals” and “rapists,” migrants from developing nations as coming from “s---hole” countries, and regularly characterizing the wave of immigrants to the United States as an “invasion.” By so doing, he would likely contribute to immigrants’ fear of government, which might inhibit them from accessing public benefits and services (including education) for which they are eligible. Fear of police also might make it less likely for immigrants to report crimes. Trump’s rhetoric and policies are likely to further embolden political leaders in Republican states to take aggressive, and in some instances unlawful, immigration enforcement measures.


Biden: As he has done in the past, Biden likely would not employ harsh, derogatory, and racist language about immigrants. He would be more likely attempt to soothe, rather than weaponize, the terms of the discussion of immigration policy. Immigrants thus would be less likely to fear government than in a Trump second term. This is true even if, as rumored, the Biden administration implemented expanded removal and related measures at the border in his second term. A second Biden administration is more likely than a second Trump administration to sue state governments for interfering with the power of the federal government to regulate immigration. 


2. Contrasting Policy Initiatives to Deter Migrants


TrumpPresident Trump embraced the immigration policies with the broadest impacts, even if close to (or beyond) legal limits. He championed construction of the U.S./Mexico border wall, declared “zero tolerance” toward undocumented immigrants, invoked the unknown Title 42 law to close the U.S./Mexico border in the name of public health, implemented the Return to Mexico policy making migrants wait in Mexico while their asylum and other claims were being decided, imposed a ban on Muslim migrants, separated migrant families at the border, employed mass detention of migrants by ending what he called “catch and release,” and more. The courts halted some of his immigration initiatives. For example, a conservative Supreme Court rejected Trump’s effort to rescind the Deferred Action for Childhood Arrivals policy, which provided united relief to young undocumented immigrants. Other Trump measures, like the Muslim ban, survived by a 5-4 vote in the high Court


Biden: In contrast, President Biden has taken a relatively moderate and deliberate approach to immigration that is calibrated to respond in a targeted fashion to migrant flows. There is no indication that there would be a significant change in a second Biden term. He dismantled many of the most aggressive Trump immigration enforcement policies, such as the Muslim ban, Title 42 order, and Remain in Mexico policy, and is likely to pursue more moderate approaches that more closely adhere to the rule of law than Trump’s initiatives. As the 2024 election neared, Biden promised to enhance border enforcement.  Even so, his measures are unlikely to approach the extremes of President Trump’s.


3. Limits on Legal Immigration


Trump: The Trump administration restricted legal immigration, with immigrant visa approval rates declining (although not as much as one might expect). In a second Trump term, legal immigration, including of skilled employees and students, again would likely find it more difficult to come to the United States. With reduced immigration, the labor crunch after the pandemic, along with declining fertility rates, likely would be exacerbated. Upward pressures on wages would likely result in price inflation. 


BidenBiden in his first term has not unduly restricted legal immigration and not expressed a desire to do so in his second term. Consequently, his legal immigration policies likely would not significantly righten the labor market and are unlikely to have the inflationary pressures of President Trump’s immigration measures.


4. Attacks on Birthright Citizenship


TrumpTrump repeatedly has attacked birthright citizenship and “anchor babies.” He has made radical claim that the President and Congress could eliminate birthright citizenship. That position is contrary to the views of reputable constitutional and immigration law scholars.

Biden: Biden has never questioned birthright citizenship. He has accepted the conventional interpretation of the 14th amendment as bestowing U.S. citizenship upon birth in the United States. 


Conclusion


The outcome of the 2024 presidential election will likely have meaningful immigration law consequences. The immigration initiatives of Trump and Biden almost certainly would be very different and have very different consequences on immigration to the United States.

January 24, 2024

Chicago Cafe: California's Oldest Chinese Restaurant

[Cross-post from UC Davis In Focus]

Featuring Gabriel "Jack" Chin

The Chicago Café in Woodland is the oldest Chinese restaurant in California – and possibly the United States – an interdisciplinary UC Davis research project led by Professor Gabriel “Jack” Chin has found.

Chin’s Asian Exclusion Research Project, composed of a cohort of law students and alums led by Natasha Kang ’23, as well as English, comparative literature and history scholars, identifies the Chicago Café as the longest continuously operating Chinese restaurant in the state in the new paper “Symbols of Survival: Finding the Oldest Chinese Restaurants in the United States.”

View video here.

The researchers also determined that the Woodland cafe, which dates to the early 1900s, is very close in age to Butte, Montana’s Pekin Noodle Parlor, widely reported to be the oldest Chinese restaurant in the United States.

Operated by generations of the Fong family, the Chicago Café has persisted through the anti-Chinese laws and public sentiment of the early 20th century, two world wars, the Spanish flu and the COVID-19 pandemic.

A UC Davis multimedia package published on Jan. 22 highlights the research project and café. On Jan. 23, “Good Day Sacramento” broadcast live from the café, where anchor/reporter Ashley Williams interviewed Chin and members of the Fong family.

December 18, 2023

Top 10 Immigration Stories of 2023

[Cross-post from ImmigrationProf Blog]

By Kevin R. Johnson

2023 has been an exciting year in U.S. immigration law and enforcement.  Here is my ImmigrationProf Top 10 Immigration Stories of 2023.  By way of comparison, here are the Top 10 Immigration News Stories of 2022.

The stories are ranked in order of significance, newsworthiness, and general interest.  Because there were in my estimation no major Supreme Court decisions this Term, the Court placed in the middle of the pack.

1.  End of Title 42

When I began work on this list, I had forgotten that, last May, the Biden administration lifted the Title 42 order that, since 202, closed the southern border to asylum seekers and migrants.  The lifting of the order was a long time coming and big news indeed. 

In the name of protecting public health, President Trump in 2020 invoked a public health law, known as Title 42, to expel migrants seeking to enter the country at the U.S./Mexico border.  Many Democrats in Congress criticized the order as effectively dismantling the U.S. asylum system.

The Biden administration promised to lift the Title 42 order.  However, some courts and political leaders -- including some Democrats -- resisted those efforts.   

After much discussion and litigation, the Biden administration finally lifted the Title 42 order in May 2023. 

A feared mass migration, which immigration hardliners had claimed would follow the order's lifting, did not come to pass.   The border saw a return to a more normal border enforcement regime, with migration ebbs and flows. 

With the end of Title 42 and repeated claims of record numbers of migrants coming to the U.S./Mexico border, many proposals for a variety of border enforcement initiatives were floated.  See The End of Title 42 and Increased Militarization of the Border.

Even though the order has been lifted for now, Trump's Title 42 order will likely have a lasting legacy as the nation considers tightening the borders.  In fact, as the year closes, there have been immigration enforcement proposals that critics call "Title 42 on steroids."

2.  Election 2024

As anyone who watches the news cannot miss, 2024 is a presidential election year.  Immigration has been an issue in the early sparring among Republican candidates.  Reflecting the long shadow of the former President on U.S. politics, the candidates often appear to try to be tougher than Donald Trump on immigration. For example, businessman Vivek Ramaswamy celebrated his immigrant family while pushing tough immigration enforcement policies.   Florida Governor Ron DeSantis invoked his tough on immigration record as indicative of the immigration enforcement emphasis that he would pursue as President.   You no doubt get the idea.

There has been much speculation -- dread in some quarters -- about the immigration policies of a second Donald Trump term.  At a minimum, the expectation is that a second Trump administration would greatly increase immigration enforcement.  See here; here; here; here; here; here.  He has contributed to the speculation with calls for a new Muslim ban and claims that immigrants are "poisoning the blood" of the nation.

3.   Middle East:  Terrorism, War, and Politics

The tragedy in the Middle East continues.  Immigration enforcement has become intertwined in the debate over U.S. aid to Israel (and here, here and here) as well as Ukraine.  The dispute in Congress over immigration enforcement has become central to Republican support for an aid package.  The Associated Press has reported that "Congress is scrambling . . . for a deal that would greatly restrict the asylum and humanitarian parole process used by thousands to temporarily stay in the U.S. while their claims are being processed in the backlogged system. . . . [T]he Biden administration is considering [an immigration compromise] as the price to be paid for the president’s $106 billion year-end request for Ukraine, Israel and national security needs."

After the events of fall 2022, anti-Semitism and Islamophobia have risen dramatically around the world.  College campuses in the United States have been at the center of political activity and hate.  See also here.  Hate crimes, including a tragic hate killing of a Palestinian-American child in Illinois, have risen in number.

As time goes by, the Middle East conflict will no doubt have immigration reverberations.  Florida Governor Ron DeSantis already has declared that the United States should not accept refugees from Gaza.  Stay tuned as this story develops.

4.  New York City Joins Texas and Florida on Immigration?

State and local resistance to immigration in recent years generally has come from Red States.  See stories 5 and 6.  2023 saw a change in that dynamic. 

Often thought of as a bastion of liberalism, New York City became the epicenter of concerns with migrants and demands for federal action.  New York City Mayor Eric Adams repeatedly said that the Big Apple could not handle the many new migrants and demanded that the federal government address the issue.  Day after day, we saw news stories about Mayor Adams' statements about the migrant "crisis" in the Big Apple.  Here are a few of the stories:

5.  Texas Contiinues Its Trump-Like Approach to Immigration Enforcement

Throughout 2023, Texas continued to pursue aggressive immigration enforcement measures.  Among other things, Texas Governor Greg Abbott fenced off the border with New Mexico -- part of the United States -- because of  "immigration" concerns and sent many busloads of migrants to Los Angeles.  See also here and here.  

The U.S. government sued Governor Abbott for another novel immigration enforcement measure -- placing floating -- and deadly -- border barriers with razor wire in the Rio Grande to deter migrants from crossing.   Is the mining of the Rio Grande next?

6.  Florida Continues Its Trump-Like Approach to Immigration Enforcement

Continuing his dedication to immigration enforcement, Florida Governor Ron DeSantis adopted a tough on immigration approach in his run for the President.  Following that lead, the Florida legislature in 2023 passed a controversial immigration law, which some feared might cause a Latina/o exodus from the state.  Life is grand unless you are an immigrant in the Sunshine State.

7.  Supreme Court and Immigration

The Supreme Court often has a thing or two to say about immigration.  I summarized the Supreme Court's immigration decisions in The Supreme Court and Immigration in the 2022 Term and Immigration in the Supreme Court, 2022 Term.   

In the 2022 Term, the Court issued four immigration decisions.  None were immigration law blockbusters.  However, the Court's disposal of the challenges of states to the Biden immigration enforcement priorities case (United States v. Texas) and Title 42 border closure case (Arizona v. Mayorkas) allowed the Biden administration to proceed with its immigration initiatives.  The four merits decisions dealt with bread-and-butter matters -- executive power over immigration enforcement priorities, exhaustion of remedies, criminal removals, and an oddball First Amendment decision involving an immigration attorney.  The U.S. government won three cases and noncitizens two.  States lost in one case.

At this time, the Court only has a couple of immigration cases on the docket for the 2023 Term, Supreme Court Agrees to Review Immigration Cases in 2023 Term, including a cancellation of removal case.  Expect the Court to take one or two more immigration cases this Term.

There has been considerable immigration litigation in the lower courts.  In a much-watched case, a federal judge in Texas declaried President Biden's DACA rule unlawful.  Just days ago, a federal court approved the settlement in a case challenging President Trump's family separation policy; the settlement puts an end to family separations, at least for now.

8.  Death on the Border Continues

This really isn't news but migrants continue to die as they seek to enter the developed world.  Death of migrants is a daily feature of life along the U.S./Mexico border and has been for decades.  Some of the stories include:

As former President Barack Obama observed, the general public pays relatively little attention to the mass deaths of migrants compared to, for example, that paid to the implosion of a submersible on a Titanic sight-seeing trip.  Specifically, President Obama contrasted the public attention paid to five deaths in the Titan implosion with mass deaths of African migrants at sea that occurred at around the same time.

Besides death, higher border walls have led to increased migrant injuries.  The Higher the Border Wall, the Higher the Migrant Falls . . . and InjuriesFortification of the wall along the U.S./Mexico border unquestionably has led to increased injuries.  Since the heightening of border barriers in 2019, El Paso hospitals have seen an increase in migrant patients with leg fractures, spine injuries and other traumas caused by falls or jumps from the fence.

9.  Monterey Park Shooting

On January 21, 2023 during the Lunar New Year, a mass shooting occurred in Monterey Park, California, United States.  Ordinarily a peaceful town, Monterey Park has been called the "first suburban Chinatown" and has a large Chinese immigrant population.  In the words of the Associated Press, "[f]or decades, Monterey Park has been a haven for Asian immigrants seeking to maintain a strong cultural identity — and a culinary heaven worth visiting for anybody near Los Angeles craving authentic Asian cuisine."   The gunman killed eleven people and injured nine others.  See Michael Luo: The Spectre of Anti-Asian Violence in the Monterey Park Shooting

10.  Immigrant (Criminal) Celebrity News

The pandemic made streaming the rage.  One Netflix series focused on a famous immigrant criminal.

The ImmigrationProf Blog reported on the immigration case of Anna Sorokin, whose complex fraud captured the world's imagination.  Her story was told in the flashy Netflix series "Inventing Anna." 

Born in Germany, Sorokin served almost four years in prison after found guilty of a variety of criminal charges.  She had claimed to be a German heiress who had a multi-million inheritance and was raising funds to launch a Manhattan social club.  Sorokin was found guilty of a variety of fraud, larceny, and theft crimes and sentenced to 4 to 12 years in prison.  She was released early in February 2021. 

Sorokin then was taken into custody by Immigration and Customs Enforcement (ICE).  In ICE detention until October 2022, she has been under house arrest since then in New York. Sorokin still faces possible removal to Germany.   

People magazine has the latest, with pictures, of Sorokin.  She "was spotted as she headed to an immigration appointment in New York City dressed head-to-toe in black."

December 6, 2023

New University of California Press Critical Race Theory Series

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

I am excited to announce that the University of California Press has a new Critical Race Theory book series. Here is the website.

Series Co-Editors:

Raquel Aldana & Kevin R. Johnson, Aoki Center for Race and Nation Studies, UC Davis School of Law

Series Advisory Board:

-Mario Barnes, Professor of Law, UC Irvine
-Rose Cuison Villazor, Interim Dean and Professor of Law and Chancellor's Social Justice Scholar, Rutgers
-Angela Harris, Distinguished Professor of Law Emerita, UC Davis
-Beth Rose Middleton, Professor and Designated Emphasis Chair, UC Davis (Native American Studies)
-Solangel Maldonado, Eleanor Bontecou Professor of Law and Associate Dean for Faculty Research and Development, Seton Hall
-Angela Onwuachi-Willig, Ryan Roth Gallo and Ernest J. Gallo Dean and Professor of Law, Boston University
-Mary Romero, Professor of Justice Studies and Social Inquiry Emerita, Arizona State (Justice Studies and Social Inquiry)
-Wadie Said, Professor of Law and Dean’s Faculty Fellow, University of Colorado

Contact the series editors if you have book ideas.

 

November 29, 2023

Reallocating Environmental Risk

[Cross-posted from Evironmental Law Prof Blog]

By Karrigan Bork and Keith Hirokawa

Living the good life has often meant finding ways to allow for growth and construction while ostensibly protecting the natural environment on which we depend. Want to build a housing development, but there’s a wetland in the way? Mitigate the harm by building a new one somewhere else. Want to dam a river, but there’s a salmon run in the way? Build fish passage around the dam. If that’s not feasible, build a hatchery instead. Want to log a forest, but worried about loss of downstream ecosystem services? Allow the harvest, with buffers and a few trees left behind to maintain essential services. Techno-optimism and overconfidence makes it easy to say yes and assume we can mitigate the impacts. Saying yes is much easier than saying no.

Unfortunately, these creative approaches often fail. Constructed wetlands fail to reproduce the essential hydrologic or biodiversity or other functions of natural wetlands. Fish passage fails to get enough fish up and down stream to keep populations viable. Hatcheries can’t sustain fisheries over the long term in the same way that habitat can. Even regulated logging can degrade downstream ecosystem services.  As a result, our good environmental intentions have paved a path to widespread degradation.

Sometimes it is due to a lack of effort or an unwillingness to spend the necessary funds, but often mitigation fails despite the best intentions. It is difficult to predict how natural systems will respond to perturbation, and recreating systems is even harder. The uncertainty of these allow-but-mitigate decisions is critical: we depend on functional natural systems, and failed mitigation risks our future. But our current approach allocates the risk of bad decisions to the environment. That is, when mitigation fails, the environment and the public, not project proponents, pay the price. There are very few consequences to the parties responsible for mitigation if they get it wrong.

Successful mitigation requires that mitigation associated with a regulatory approval be designed to effectively neutralize the damage, rather than simply to ensure that permits are issued and construction commences. Embracing some form of the precautionary principle might help, but we seem unwilling to put off decisions or simply deny projects with uncertain impacts. Iterative adaptive management with long term monitoring might help, but this approach often stumbles due to the difficulty in refashioning policies. If we’re going to keep relying on engineering or policy fixes to soften the blow (and all evidence suggests that we will), we need a better way to allocate environmental risk.

Fortunately, we have faced this problem in other contexts, and policy makes have developed productive ways to manage uncertainty. Applying these approaches more broadly might reallocate environmental risk away from the environment and the public and place it on project proponents. Such a reallocation internalizes the risk for project proponents, leads to better environmental outcomes, and should lead to better environmental decisionmaking.

For example, local governments often require developers who seek approval for new developments to provide needed public infrastructure improvements (e.g., roads, traffic control devices, sidewalks, water and sewer pipes, etc.) to reduce new congestion and defray the public costs of the new development. Because new development brings in higher use of public infrastructure, these improvements allow cities to ensure that developers pay more of the public costs of their developments. But if these improvements are poorly constructed or otherwise prone to failure, they can make the community worse off than before—more people, more expenses, and failed mitigation. This parallels the problems with failed environmental mitigation projects.

Local governments sometimes address this risk by requiring developers to post performance bonds. The developer purchases a performance bond from a third party, called the surety, a company that is “ensuring” the developer’s infrastructure work will meet relevant requirements. If the developer’s work fails to meet the requirements the government recovers funds from the surety which (ideally) are sufficient to bring the work up to par. Thus performance bonds allow developers to proceed with building their projects by guarding against the uncertainty of whether the required improvements will perform. The local government approving the project no longer bears the risk of the developer’s failure.

Financial assurances, in the form of bonds, insurance, or other mechanisms, could similarly play a more significant role in other areas of environmental law. New fish passage projects required for dams could carry insurance that would fund additional construction or even dam removal if functional fish passage proved impossible. Logging projects could require bonds that would pay for downstream remediation if efforts to mitigate impacts to the forest’s ecosystem services proved inadequate.

The idea of environmental performance bonds or other financial mechanisms to ensure performance is not new, but it has been vastly underutilized. For example, an assurance approach is also used in wetland mitigation and stream mitigation for Section 404 permitting under the Clean Water Act. Under regulations issued in 2008, 404 permits issued by the Corps of Engineers require financial assurance based on performance standards for newly constructed wetlands, which should ensure that the new wetlands adequately mitigate the wetlands lost through the permitted dredge and fill. The financial assurances, which may take the form of bonds, insurance, or other mechanisms, are generally only required for 5-10 years, however, a time frame too short to determine whether the new wetlands will actually achieve their mitigation requirements. Bonding for mine reclamation and financial assurances for hazardous waste treatment facility closure provide other examples, although such assurances are often insufficient to cover actual reclamation costs (sometimes by an order of magnitude).

We tend to assume success and proceed in face of uncertainty when other parties bear the risk of failure. We will also continue to get many mitigation decisions wrong. Thus, we need to reallocate the environmental risk away from the public and the environment. In this context, performance bonds or other financial assurances can reallocate the risk and increase the likelihood that mitigation will succeed, but this approach has been vastly underutilized to curb the current risk of loss in environmental permitting.

November 29, 2023

Immigration, Refugee & Citizenship Law eJournal, Vol. 23, No. 117

Edited by Kevin R. Johnson

Table of Contents

"Citizenship Outside the Courts"

-Catherine Y. Kim, Brooklyn Law School

"Border Enforcement as State-Created Danger"

-Jenny-Brooke Condon, Seton Hall Law School
-Lori A. Nessel, Seton Hall Law School

"When Migrants Mobilize Against Labor Exploitation: Evidence from the Italian Farmlands"

-Gemma Dipoppa, Brown University, Political Science

"Europeans’ Attitudes Towards Displaced Populations: Evidence From a Conjoint Experiment on Support for Temporary Protection"

-Michal Wiktor Krawczyk, Joint Research Center of the European Commission
-Andrea Blasco, Harvard University - Institute for Quantitative Social Science
-Tomasz Gajderowicz, University of Warsaw
-Marek Giergiczny, University of Warsaw

"An Economic Analysis of Internal and International Migration - Some Issues and Challenges"

-Nagesha Economics, Department of Economics

"Dignity. Reverence. Desecration."

-Duane Rudolph, University of San Francisco School of Law

"The Exclusion of Long-Term Australian Residents from Access to Voluntary Assisted Dying: A Critique of the 'Permanent Resident' Eligibility Criterion"

-Katrine Del Villar, Queensland University of Technology
-Lindy Willmott, Queensland University of Technology - Faculty of Law
-Ben White, Queensland University of Technology - Faculty of Law

------------------

"Citizenship Outside the Courts" Free Download
Catherine Y. Kim, Citizenship Outside the Courts, 57 U.C. Davis L. Rev. 253 (2023)
Brooklyn Law School, Legal Studies Paper No. 757

CATHERINE Y. KIM, Brooklyn Law School
Email: catherine.kim@brooklaw.edu

The notion of citizenship lies at the core of our constitutional structure, determining possession of fundamental rights ranging from the rights to vote and hold public office to the right to enter and remain in the United States at all. Indeed, the entire constitutional project of self-governance rests on the premise of a defined group of “We the people.” Determining who qualifies as a citizen is thus central to our constitutional fabric. Prior literature has tacitly assumed that the federal judiciary has been the principal arbiter for deciding who qualifies for citizenship under our Constitution. This Article, however, demonstrates that political actors, rather than federal courts, have played the primary role in defining access to constitutional citizenship for members of historically marginalized groups, which raises significant normative implications.

This article excavates records surrounding three pivotal episodes from our nation’s history: the contestation of citizenship for Black Americans in the early to mid-nineteenth century; the denial of citizenship to Chinese Americans during the Exclusion Era from 1882 to 1943; and the stripping of citizenship from American women who married noncitizens prior to 1922. In each case, members of historically marginalized groups seeking to assert their constitutional citizenship found little recourse in the federal courts. Political institutions, however, independently wrestled to determine their citizenship status, in the absence of — or even in defiance of — federal court opinions. The historical record tells a story of judicial abdication, which allowed political actors to both narrow and expand access to constitutional citizenship.

The histories unearthed in this Article raise an urgent fundamental normative question: To what extent should constitutional citizenship be determined by political actors? This Article argues that citizenship is unique among constitutional provisions in ways that generally cast doubt on the legitimacy of efforts — political or otherwise — to deny it to members of marginalized communities. Moreover, the histories uncovered in this Article show that political institutions are not inherently more or less likely than the federal judiciary to do so. The experiences of Black Americans, Chinese Americans, and married American women thus suggest that the road to a more inclusive citizenship requires involvement by both: federal courts must play an active role in policing the constitutional floor for citizenship, but the political branches must remain free to expand constitutional citizenship beyond that floor, which may, in turn, generate a new consensus on what that floor should be.

"Border Enforcement as State-Created Danger" Free Download
Seton Hall Law School Legal Studies Research No. Forthcoming
St. John's Law Review , Vol. 96, No. 4, 2022

JENNY-BROOKE CONDON, Seton Hall Law School
Email: Jenny-Brooke.Condon@shu.edu
LORI A. NESSEL, Seton Hall Law School
Email: lori.nessel@shu.edu

A woman seeks refuge at the U.S. border, but U.S. officials force her to wait for her asylum hearing in Mexico where a police officer later stalks and rapes her. A father and child suffer unbearable trauma after U.S. officials separate them under a policy aimed at deterring migration. A formerly healthy family loses a loved one to the coronavirus while forced to wait at an unsanitary, makeshift tent city in Mexico after fleeing for safety to the United States. For the people impacted by U.S. border policies, the southern border is a dangerous place—it is the site of rampant U.S.-created harm. Typically, legal and policy responses to refugee crises are framed by international and domestic legal obligations to provide safety and protect those fleeing persecution or humanitarian disasters. When states fail to meet migrants’ needs or thwart humanitarian processes, critiques logically focus on the government’s failure to meet its refugee, domestic law, and moral obligations. But this focus, though an essential part of countering the government’s illegal actions, insufficiently addresses the United States’ role in creating and inflicting harm.

Recently, however, in the context of the Trump Administration’s family separation policy, a district court recognized that the state-created danger theory of substantive due process protection may have a role to play in reckoning with the harm inflicted at the border—a development constitutional law scholars described as “groundbreaking.” The recognition of state-created danger theories in the family separation context thus raises the possibility of unlocking substantive due process protection in response to other forms of immigration enforcement that cause grievous and lasting harm.

Still, commentators have long lamented the state-created danger doctrine as narrow and impossible to meet. Nevertheless, over the last several decades, many state and federal courts have affirmed the doctrine, recognizing that the State has a duty not to expose people to conscious-shocking harm, even harm committed by third parties, if it is made possible or likely because of state action. The courts have recognized the theory as a possible constitutional restraint even if they have been reluctant to recognize circumstances qualifying as constitutional violations.

This Article draws upon this strand of substantive constitutional protection to help draw attention to and conceptualize new ways of challenging the United States’ state-created border harm. We argue that this body of law provides a strong theoretical foundation for holding government actors accountable for what one commentator described as a doctrine reserved “for truly egregious” government abuse, fitting match for excessive and punitive immigration enforcement that costs people their lives, safety, health, and security. At the very least, it is a starting place for broader normative conversations about the unlawful harm inflicted by the United States in the name of border control.

"When Migrants Mobilize Against Labor Exploitation: Evidence from the Italian Farmlands" Free Download

GEMMA DIPOPPA, Brown University, Political Science
Email: gemma_dipoppa@brown.edu

Migrant labor exploitation is widespread in developed countries, which host growing populations of undocumented migrants. While denouncing by migrants is essential to prosecute exploitative employers, an undocumented community actively hiding from the state is unlikely to whistleblow. I consider an intervention giving migrant farmworkers in Italy information and incentives to report their racketeers. I leverage the intervention’s staggered (phased) rollout to study its effects in a difference-in-differences framework. The intervention empowered migrants to denounce their exploitation to the authorities; it increased the prosecution of criminal organizations, responsible for racketeering migrants; and it raised awareness among natives, who became more favorable towards immigration and parties supporting it. These findings highlight the conditions under which undocumented migrants can take political action for their socioeconomic advancement. Unlike other integration policies which have been shown to backlash, highlighting migrants’ vulnerability to exploitation might foster solidarity and more liberal immigration attitudes among natives.

"Europeans’ Attitudes Towards Displaced Populations: Evidence From a Conjoint Experiment on Support for Temporary Protection." Free Download

MICHAL WIKTOR KRAWCZYK, Joint Research Center of the European Commission
Email: mkrawczyk@wne.uw.edu.pl
ANDREA BLASCO, Harvard University - Institute for Quantitative Social Science
Email: ablasco@fas.harvard.edu
TOMASZ GAJDEROWICZ, University of Warsaw
Email: tgajderowicz@wne.uw.edu.pl
MAREK GIERGICZNY, University of Warsaw
Email: mgiergiczny@wne.uw.edu.pl

Millions of people were forced to flee Ukraine after Russia’s invasion on February 24, 2022, one of the fastest displacements in decades. Citizens' response in EU countries (where most displaced Ukrainians arrived) has been considerably more positive than in past refugee crises. This study investigates several possible drivers of this difference. We conduct a large conjoint experiment in six EU Member States, eliciting willingness to provide temporary protection to hypothetical groups of future migrants whose characteristics we manipulate systematically. We find that all of the experimental variables make a difference. We observe a greater support for protecting groups consisting of relatively many children and many women rather than men. The region of origin and the religious affiliation also play a significant role. Finally, we see greater support for people fleeing a war rather than poverty or the adverse consequences of climate change. While all these effects are identified consistently across different groups of respondents (e.g., the respondent's religion played a limited role), effect sizes vary considerably between countries. Finally, randomly manipulate which aspect of temporary protection (social housing, access to the labour market) is emphasised in our communication to the participants. We find this manipulation to have a limited effect on the public support for the policy.

"An Economic Analysis of Internal and International Migration - Some Issues and Challenges" Free Download

NAGESHA ECONOMICS, Department of Economics
Email: b_nagesha@yahoo.com

Migration has become one of the most important facts of globalization. Migration has a dynamic process that has significantly formed the global economies. Migration means the movement of skill, cultures, traditions, families and hopes that make up the life of a human being. There are several facts, political, economic and social that influences the movement of people and the choice of their destination. Internal migration, effects on the economies in the domestic countries, whereas, international migration affects on the economies of both the domestic and aboard. Such affects may be economic and non-economic. About 139 million internal migrants in India are found and globally there were an estimated 258 million migrants (World Economic Forum Report 2017). The macro-level causes for voluntary international migration are for example socio-economic reasons. Numerous causes are responsible for migratory movement. To mention some of them: land degradation, unequal distribution land, low productivity of agriculture, the decline in natural resources, unemployment, socio-economic factors, religious and miscellaneous factors etc..Population growth in the countries is substantially being affected by the migrant population. The migration poses challenges both internally and externally. The external challenge is to balance the need for foreign workers and human rights commitment for migrants who want economic opportunity and political freedom. Problems related to migration are challenging, such as Rapid Growth in Population, Challenges of High Labour Migration Cost, Inadequate Resource Allocation, and Lack of Skilled Human Resource. The paper deals with some issues and challenges of internal and international migration. The paper depended on secondary sources of information.

"Dignity. Reverence. Desecration." Free Download
Seton Hall Law Review, Vol. 53, No. 1173, 2023

DUANE RUDOLPH, University of San Francisco School of Law
Email: drudolph@usfca.edu

This Article focuses on two cases from the Supreme Court of the United States dealing with sexual orientation—Bowers v. Hardwick (1989) and Boutilier v. Immigration and Naturalization Service (1967). Hardwick held that the Federal Constitution did not recognize a right to consensual intimacy among human beings of the same sex, and states could regulate the issue. Boutilier held that the federal government could order the deportation of non-heterosexual applicants for citizenship since they were deemed to have a “psychopathic personality, sexual deviate,” and their treatment as such did not offend the Federal Constitution.

The argument is that human dignity, as represented in Hardwick, Boutilier, and other landmark cases, is not only about the status of specific individuals and communities, but also about the reverence required by individuals and communities holding superior or supreme status. Those holding such status identify individuals and objects they revere and for whom (and which) they mandate reverence. Reverence, in this context, has two meanings—veneration and deference. Veneration and deference are selectively bestowed upon specific individuals, communities, and objects, and they are denied to others, especially those associated with the most vulnerable communities.

The absence or failure of dignity is not, as commentators often argue, humiliation, demeaning, or degradation of a human being, but desecration. Desecration is an experience, an attitude, and a response, which includes humiliation, demeaning, and degradation. Desecration is the unacceptable experience, by those holding superior or supreme status, of a perceived lack of reverence for hallowed individuals, objects, and ideals. Desecration is, further, an attitude and a response. As an attitude, desecration is the intuitive act of resistance by those assigned inferior status simply by being themselves. And as a response, desecration is what those possessing superior or supreme status do to those who, simply by existing as themselves, are deemed inferior.

"The Exclusion of Long-Term Australian Residents from Access to Voluntary Assisted Dying: A Critique of the 'Permanent Resident' Eligibility Criterion" Free Download
Monash University Law Review, Forthcoming

KATRINE DEL VILLAR, Queensland University of Technology
Email: katrine.delvillar@bigfoot.com
LINDY WILLMOTT, Queensland University of Technology - Faculty of Law
Email: l.willmott@qut.edu.au
BEN WHITE, Queensland University of Technology - Faculty of Law
Email: bp.white@qut.edu.au

When state parliaments legalised voluntary assisted dying (VAD), they could not have anticipated that the requirement to be ‘an Australian citizen or permanent resident’ would be one of the main areas of controversy. This criterion of eligibility was intended to prevent people travelling from other countries to access VAD. However, because the term ‘permanent resident’ is not defined in the legislation, it has unfortunately prevented some long-term Australian residents from accessing VAD. We evaluate various definitions of ‘permanent resident’ and conclude that a plain English definition better suits the text, context and purpose of the VAD laws than the technical definitions found in migration or citizenship legislation. We then suggest policy and statutory reform to ameliorate some of the problems which have occurred in practice.

October 13, 2023

The Song Remains The Same: Election Year Immigration Politics

Presidential campaign 2024 will be heating up and immigration will no doubt be discussed  Former President Donald Trump is rattling the sabers of tough immigration policies.   Several debates of Republican candidates for President have been held.  The candidates predictably talked tough on border enforcement. Harsh words, however, will not move the nation forward in revamping the U.S. immigration laws.  They haven’t in the past and will not in the future. 

At least since after the presidency of George W. Bush, Republican politicians have consistently called for more stringent border enforcement with sparse relief for immigrants, and most definitely not a pathway to lawful status for undocumented immigrants.  The amazing political popularity of President Trump’s no-holds-barred approach to immigration looms large in the minds of Republican presidential hopefuls.  That is the case even though President Trump did not have lasting impacts on immigration policy goals, such as reducing the size of the undocumented immigration.  The measures however, did frighten, punish, and injure immigrants. 

Democrats have not been all that different.  They have been committed to tougher border enforcement and to providing some relief for immigrants.  Although tending to take a softer, more balanced approach to immigration, some Democratic presidents have embraced tough positions.  President Bill Clinton signed into law the tough Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  President Obama set records for removals of noncitizens from the United States, earning him the moniker in some circles as the “Deporter in Chief.”  Today, Democratic leaders in the state of New York, including the Mayor of New York and Governor, demand federal action to quell the flow of immigrants into the state.  Although taking a more nuanced approach to immigration enforcement, President Biden recently announced the building of barriers along the U.S./Mexico border, which generated opposition from immigrant advocates. 

Put differently, political expediency has drawn Democrat and Republican to support heightened border enforcement measures.  Unfortunately, what is wholly absent in the political wreckage of immigration politics is any commitment to doing the challenging political work necessary to build a coalition in support of a meaningful and lasting immigration reform proposal.

Historically, anti-immigrant campaigns have enjoyed great political success.  Fueled by racial hatred running rampant at the time, the Chinese exclusion laws of the late 1800s are a shining example of how dark passions have left deep stains on the nation.  Anti-Chinese political movements in the West sparked Congress to pass a series of federal laws effectively excluding Chinese immigrants from U.S. shores.  Modern examples of the political power of anti-immigrant sentiments are plentiful.  President Trump’s infamous Muslim ban founded on anti-Muslim animus and the separation of migrant families at the border are powerful reminders.  As constitutionally dubious as they are, calls to end birthright citizenship often are made, including by Donald Trump.  Race (Mexican) and gender (women) are the targets of the efforts to end birth-right citizenship.  In the 2016 campaign, loud cheers for a border wall between the United States and Mexico could be heard at Trump speeches in which he advocated a “big, beautiful wall.”

 Sad to say political grandstanding, not serious calls for reform, carry the day.  The way to change the fundamental nature of political debate is not entirely clear.  Republicans and Democrats agree on the dire need for far-reaching immigration reform.  The path to getting there, as well as the nature of the reform, unfortunately is far from evident.  Until a path to meaningful change is found and followed, we can expect political campaigns and immigration politics that we have seen for the last twenty years.  Tough talk on immigration and little attempt to in fact address the real challenging issues.

 

September 15, 2023

The Immorality of DACA’s “Illegality”

[Cross-post from Aoki Center Blog]

By Raquel E. Aldana

Two thousand and one marked the introduction of the first DREAMER legislation in the U.S. Congress. Over the next two decades, at least a dozen versions of bills would be introduced to attempt to regularize the status of DREAMERS, a term that describes around two million persons in irregular immigration status brought to the United States as children. Despite consistent and broad support for DREAMER legislation, the closest Congress came to passing the legislation was in 2010 when it passed the House but fell just five votes short of the 60 needed to proceed in the Senate.

Few other stories of failed legislation in recent U.S. history exemplify the perils of congressional dysfunction like the fate of Dreamers in the U.S. Congress. One significant peril has been the human toll on millions of deserving young people who are American except by birth. Another is the strain on U.S. democracy when its elected leaders refuse to take moral action to rectify wrongs even in the face of strong public support for them to do so. [1]

In 2012, the Obama Administration’s imperfect response to this congressional moral failure came in the form of a Department of Homeland Security [DHS] Memorandum that created DACA (Deferred Action for Early Childhood Arrivals). DACA provided respite from deportation to certain DREAMERS who qualified under the program’s guidelines, an estimated 1.7 million. Ultimately, fewer applied but the numbers reached as high as 814,000 by 2018, and 578,680were still active by March 2023.

DHS relied on its prosecutorial discretion powers to issue DACA. It also employed rational pragmatism and humanity to grant worth authorization to DACA recipients. Without work authorization, DACA recipients would be expected to live in the shadows of U.S. society, not only in despair but also exploitable. It is worth noting that at its discretion, and for humanitarian reasons, DHS grants work authorization to foreign nationals awaiting adjudication of their immigration status or who are under temporary forms of protections in recognition that protection from deportation, even when temporary, without an ability to work, is no protection at all.

Now, Judge Andrew Hanen seizes on DACA’s longevity and its accompanying work authorization, to declare it illegal. To be exact, Judge Hanen, with the Fifth Circuit’s blessing, first found the 2012 DHS Memorandum creating DACA illegal at its tenth anniversary. The same year, in 2021, the Biden administration attempted to “preserve and fortify” DACA’s legality by enacting a formal rule. But to Judge Hanen, the rule may have fixed the irregularities of how DACA came to be (adopted without notice and comment) but did not address what he, and the Fifth Circuit, consider DACA’s substantive flaws. Then on September 13, 2013, Judge Hanen declared  the new Biden rule similarly illegal, leaving the ultimate fate of DACA in the hands of the Fifth Circuit and likely the U.S. Supreme Court. What, exactly, is said to be illegal about DACA? According to Judge Hanen and the Fifth Circuit, DACA violates the Administrative Procedures Act [APA] and the Take Care clause of the U.S. Constitution because its issuance exceeds DHS’s statutory authority under the Immigration and Nationality Act. The Fifth Circuit must now decide whether it agrees with Judge Hanen that the new DACA rule, just like the 2012 Memorandum, exceeds DHS’s statutory authority. Ultimately, the issue is likely to end up before the U.S. Supreme Court, which will be an arbiter of yet another issue with potentially dire consequences for the lives of millions in this country.

One saving grace of this unfortunate litigation saga is that Judge Hanen and the Fifth Circuit, while enjoining new DACA applications after finding the program unlawful, have spared current DACA recipients from losing their vested status, at least until the issue is adjudicated definitively on the merits. This is significant to the well-being and livelihood of over half a million current DACA holders who have relied on this status to build careers, gain professions, secure better pay, have families, acquire properties, and open businesses. Ideally, this recognition, at least for this group, could also have legal significance. It mattered to the U.S. Supreme Court in 2020, at least, when it halted the Trump administration’s attempt to rescind DACA without a fair process. It should also matter when the Fifth Circuit or ultimately the Court interprets the Immigration and Nationality Act’s permissiveness to allow DHS’s issuance of DACA. Here, a Chevron deference that is informed by the principle of lenity should govern statutory interpretation. It is also not arbitrary and capricious, the APA’s substantive standard for agency action, for DHS to confer employment authorization for humanitarian and pragmatic reasons to those over whom it has exercised the discretion not to deport.

Of course, Congress can end the litigation by rendering it moot if and when it passes DREAMER legislation, or broader comprehensive immigration reform. Both the House and the Senate have current bipartisan bills protective of DACA recipients Congress consider for adoption quickly. As well, broader pieces of comprehensive immigration reform proposals have been on the table and ripe for consideration.  Meanwhile, it is hopeful that at some point as many as 22 states joined to support DACA in the litigation before the Fifth Circuit, in contrast to the 9 states that are seeking to end it. States as well have an important role to play in supporting DACA and all undocumented residents, but especially the hundreds of thousands of unDACAmented youth impacted by this litigation. This Higher ED Immigration Portal highlights examples of several state innovation to support DACA students. Institutions of higher learning can be creative in how to support access and affordability to universities and colleges. Civil society has a crucial role to play to push for reform and engage with the issue. The time is now. Sí se puede!

 

July 7, 2023

Immigration in the Supreme Court, 2022 Term

[Cross-Post from ImmigrationProf Blog]

By Kevin R. Johnson

No Supreme Court Term could be expected to attract the national attention given to the 2021 Term, which saw the unprecedented leak of the opinion in the Dobbs case overruling Roe v. Wade and changing the constitutional trajectory of reproductive freedom in the United States.  Still, some decisions in the 2022 Term brought great change to the law.  Flirting with the outcome for years, the Court finally put in the minds of many an end to race-conscious affirmative action in university admissions.  At the same time, there were some pleasant surprises for liberals, including notable voting rightselection law, and Indian law decisions.  There also was time for a light moment or two.  Lovers of dogs and whiskey had to take glee in Jack Daniel's beat back in a trademark case of the manufacturer of a "Bad Spaniels" dog toy.

Each year, I compile the Supreme Court's immigration decisions from the most recent Term.  My recap of immigration decisions from the 2021 Term is here.   

The 2022 Term saw the Court issue four immigration decisions, the same number as last Term.  None were immigration law blockbusters, although the Court's disposal of the challenges of states to the Biden immigration enforcement priorities case (United States v. Texas) and Title 42 border closure case (Arizona v. Mayorkas) were important to the Biden administration's overall immigration program. 

The four merits decisions -- three of which came down in the last week of June -- dealt with executive power over immigration enforcement priorities, exhaustion of remedies for judicial review, criminal removals, and a (rare) First Amendment decision involving an immigration attorney  The U.S. government won in three cases.  Noncitizens won in two.  Immigration attorneys lost in one.  States lost in one case.

Merits Decisions

1.  Executive Power over Immigration Enforcement Priorities:   United States v. Texas.

U.S. government wins.  Noncitizens win.  States Lose.

In an opinion by Justice Brett Kavanaugh, the Court in United States v. Texas held that Texas and Louisiana lacked Article III standing to challenge the Biden administration’s immigration enforcement priorities, namely its more targeted approach focused on criminal noncitizens and other dangers to public safety than the Trump administration's "zero tolerance" approach to all undocumented immigrants.  Justice Samuel Alito was the lone dissenter.

The Court specifically held that the states could not challenge the Biden administration's Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law.

Writing for the majority, Justice Kavanaugh emphasized that “[t]he States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Amy Howe for SCOTUSBlog summarized the decision as follows:

"In a major victory for the Biden administration, the Supreme Court . . . ruled that Texas and Louisiana do not have a legal right, known as standing, to challenge a Biden administration policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation. The justices therefore did not weigh in on the legality of the policy itself, instead reversing a ruling by a federal district court in Texas that struck down the policy. The vote was 8-1. Justice Brett Kavanaugh wrote for a majority. . . . Justice Neil Gorsuch wrote an opinion in which he agreed that the states lacked standing, but for a different reason; his opinion was joined by Justices Clarence Thomas and Amy Coney Barrett (who wrote her own concurring opinion, joined by Gorsuch).

Justice Samuel Alito was the lone dissenter. He complained that the court’s decision left states `already laboring under the effects of massive illegal immigration even more helpless.'

The policy at the center of . . . United States v. Texas, was outlined in a . . . memorandum by Secretary of Homeland Security Alejandro Mayorkas. The memorandum explains that because the Department of Homeland Security does not have the resources to apprehend and deport all of the more than 11 million noncitizens who could be subject to deportation, immigration officials should prioritize the apprehension and deportation of three specific groups of people: suspected terrorists; noncitizens who have committed crimes; and those caught recently at the border." (bold added).

The Court went to some length to make it clear that its holding does not affect the ongoing challenges by several states to the lawfulness of the Deferred Action for Childhood Arrivals policy.   As the National Immigration Project stated in a "practice advisory" to United States v. Texas

"[t]he decision may have broader implications on states’ standing to challenge federal immigration policies, but the Court repeatedly noted that its decision is limited to the context of enforcement discretion over arrests and prosecutions. The Court explained that it does not reach questions regarding standing to challenge provision of legal benefits (such as DACA) or detention of noncitizens who have already been arrested." (bold added).

Secretary of Homeland Security Alejandro N. Mayorkas released the following statement on the Court’s ruling in United States v. Texas:  “We applaud the Supreme Court’s ruling. DHS looks forward to reinstituting these Guidelines, which had been effectively applied . . . to focus limited resources and enforcement actions on those who pose a threat to our national security, public safety, and border security. The Guidelines enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress."

On the same day that it decided United States v. Texas, the Court decided United States v. Hansen.  The two decisions were the final immigration decisions of the Term.

2.  Exhaustion of Remedies and Judicial Review:  Santos-Zacaria v. Garland

Noncitizen wins.

Justice Jackson delivered the unanimous opinion of the Courtwhich Chief Justice Roberts and Justices Sotomayor, Gorsuch, Kavanaugh, and Barrett joined.  Justice Alito concurred in the judgment, which Justice Thomas joined. 

In a straight-forward statutory interpretation case, the Court held that 8 U.S.C. 1252(d)(1), which requires noncitizens to “exhaus[t] all administrative remedies . . . as of right” before challenging a Board of Immigration Appeals final order of removal in federal court, does not require noncitizens to file motions for reconsideration before seeking review in the court of appeals.  The ruling vacated in part and remanded the Fifth Circuit decision rejecting an appeal by a Guatemalan transgender woman.  

3.  First Amendment Challenge to a Criminal Immigration Statute:  United States. v. Hansen

U.S. government wins.   Immigration attorneys lose.

The case presented the question whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain violates the First Amendment.  The Supreme Court in United States v. Hansen rejected the First Amendment challenge to the law. 

The U.S. government prosecuted Helaman Hansen for promising noncitizens a path to citizenship through "adult adoption," a form of relief that does not exist under the law.  8 U.S.C. §1324(a)(1)(A)(iv) makes it unlawful to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”  Hansen challenged the law as overbroad in violation of the First Amendment. The Ninth Circuit agreed.  The Supreme Court in 2020 had been presented the same First Amendment issue (United States v. Sineneng-Smith) but had disposed of the case on procedural grounds.  

In a 7-2 decision authored by Justice Amy Coney Barrett, the Court reversed, finding that the law does not prohibit a substantial amount of protected speech and does not violate the First Amendment.  Justice Ketanji Brown Jackson dissented, in an opinion joined by Justice Sonia Sotomayor. The dissent states:

"At bottom, this case is about how to interpret a statute that prohibits `encourag[ing] or induc[ing]' a noncitizen `to come to, enter, or reside in the United States' unlawfully. . . . The Court reads that broad language as a narrow prohibition on the intentional solicitation or facilitation of a specific act of unlawful immigration—and it thereby avoids having to invalidate this statute under our well-established First Amendment overbreadth doctrine. But the majority departs from ordinary principles of statutory interpretation to reach that result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century."

4.  Criminal Removal for Obstruction of Justice:  Pugin v. Garland (consolidated with Garland v. Cordero-Garcia)

U.S. government wins.

The issue is these cases was whether, to qualify as “an offense relating to obstruction of justice,” 8 U.S.C. § 1101(a)(43)(S), an offense must have a nexus to a pending or ongoing investigation or judicial proceeding?  The issue is of practical immigration significance because an “offense relating to the obstruction of justice” is among the criminal convictions that are classified by the immigration statute as an "aggravated felony" subjecting noncitizens to mandatory removal from the United States. 

Justice Kavanaugh delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Barrett, and Jackson joined.  Justice Jackson filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, which Justice Gorsuch joined, along with Justice Kagan (except for Part III).  The majority held that a criminal offense may "relat[e] to obstruction of justice” under the statute even if the offense does not require that an investigation or proceeding be pending.  The Court observed that obstruction of justice is often “most effective” when it prevents “an investigation or proceeding from commencing in the first place.” 

The bottom line of the SCOTUSBlog analysis of the decision by Karen Pita Loor and Cassidy Heverling is that "the majority’s decision in Pugin opens the door for the government to argue that an ever-expanding array of crimes warrant deportation."

Case Dismissed from Merits Docket

The immigration case of the 2022 Term that perhaps received the most attention involved the Title 42 order, which President Trump originally issued to close the border to migrants ostensibly to reduce the spread of COVID.  Arizona v. Mayorkas involved challenges to the Title 42 order.  After the Biden administration abandoned the appeal, the Court agreed to review whether states may intervene to challenge the district court’s entry of summary judgment order in the case  In December 2022, the Court allowed the Title 42 order to remain in place pending the appeal.   In May 2023, the Biden administration lifted the Title 42 order.   Despite considerable (and exaggerated) concern with the mass movement of migrants, the end of Title 42 was uneventful.  Not long after, the Supreme Court dismissed the appeal and sent the case back to the lower court with instructions to dismiss the states’ request as moot.

 

June 9, 2023

Migrant Flights Reveal How Politicians Would Rather Toy with People Than Talk Solutions

[Cross-post from CalMatters]

By Kevin R. Johnson

With 2024 campaigns heating up, immigration politics are as well, and we can expect the election cycle to bring much fire and brimstone. Sadly, as has long been the case in U.S. history, immigrants will likely suffer as a result of the political maneuverings.   

Seeking to establish his tough immigration enforcement credentials as the Republican primaries near, Florida Gov. Ron DeSantis has made headlines by taking the extraordinary step of flying migrants to Democratic states that are more open to immigrants. Last year, he arranged for a group to be flown to tourist destination Martha’s Vineyard in Massachusetts, a Democratic bastion. And over the last week, DeSantis sent several flights to Sacramento making it the latest blue-state dumping ground. 

Sadly, DeSantis’ publicity stunts adversely affect real people and real lives. To his credit, Sacramento Mayor Darrell Steinberg and others embraced the migrants with open arms,  providing them with food, shelter and lawyers to help them address their immigration status.  

Although the migrant relocation program may be new, it is just the latest chapter in the cynical practice of playing politics with immigrant lives.  

Immigrant bashing has a long history in the United States. In a period of Chinese immigration in the 1800s, California strongly advocated for national Chinese exclusion laws, which effectively led to a ban on Chinese immigration to the United States.

More recently, former President Donald Trump famously kicked off his successful 2016 presidential campaign by attacking Mexican immigrants as “criminals” and “rapists.” As president, he continued similar rants toward Haitians, Salvadorans and others, crudely saying that the United States should not be accepting migrants from “shithole countries.” Trump appealed to his anti-immigrant base, and fomented even greater hate.  

For four years, the Trump administration pursued tough immigration policies, narrowed asylum relief, talked of a “beautiful” wall along the southern border and ending birthright citizenship. He also closed the border under Title 42, ostensibly to prevent the spread of COVID, and the “remain in Mexico” policy forcing asylum seekers to remain in Mexico while their claims were being decided in the United States. 

President Trump’s tough talk translated into unforgiving policies, felt by immigrants, their families and communities. Two of the most memorable policies were the heartless separation of children from their parents, and the ban on the admission of migrants from Muslim nations.  

Immigrant communities in the U.S. responded as expected. Terrified to leave their homes, some parents feared taking their children to church, doctors and school. Activists fought back but the damage was done. 

Unfortunately, DeSantis follows the same anti-immigrant playbook as Trump. In fact, he seems to be trying to outdo Trump on immigration enforcement. 

The governor demonizes immigrants at every turn and supports policy measures that punish them. At his behest, the Florida legislature passed a tough state immigration law, much of which appears to intrude on the federal power to regulate immigration and thus likely violates the U.S. Constitution. It requires employers to use a federal database to verify the employment eligibility of employees and invalidates out-of-state drivers licenses for immigrants.  

Put simply, DeSantis seeks to make headlines by playing with immigrant lives. He is appealing to the nation’s baser instincts and, in the end, does little to address the nation’s challenging immigration policy issues – which include reforming the system of legal immigration, addressing the legal status of undocumented immigrants already in the U.S. and determining how best to enforce immigration laws stateside and at the border. 

In the end, the migrants dumped in Sacramento are part of a larger ploy to score political points and win elections, not address the immigration issues facing the nation.