July 23, 2021

America's West is Drying Out. Here's What We Can Do About It

[Cross-posted from CNN]

By Richard M. Frank

A cattle rancher in North Dakota has culled half his herd, since there's little grass left to graze. Thousands of trees in Tucson, Arizona, are dying and an entire generation of salmon in the Klamath River could be wiped out.

The western US, which is in the throes of a "megadrought" that has been plaguing the region since 2000, has entered an era of water crisis that is unprecedented in recorded American history. Due to climate change, that drought has been getting progressively worse. Warmer winters lead to decreased snowpack and hotter summers cause drier conditions, creating a vicious cycle of heat and drought.

Climate scientists warn that longer and more intense droughts are not an aberration -- they're the "new normal." To make matters worse, the laws and policies determining water rights are now becoming obsolete due to climate change. Given this reality, it's imperative that the American West modify its water policies without delay and implement more efficient methods of conserving and managing water. 

The alarming effects of the West's megadrought are multifaceted. Without sufficient rain and water, wildlife will inevitably suffer, ecosystems will be severely damaged, and the number and severity of wildfires triggered by torrid weather and dry vegetation will continue to plague the Western states.

Megadrought affects the West's agricultural sector as well. California alone produces a third of the country's vegetables and two-thirds of the country's fruits and nuts. Due to the lack of available water, however, farmers are leaving fields fallow, uprooting orchards and vines and culling herds. The drought also impacts urban areas, with cities like Phoenix, Denver, Las Vegas and Los Angeles facing unprecedented water shortages and supply cutbacks.

The West's major water storage projects -- on the Colorado, Columbia, Sacramento, Rio Grande and other river systems -- traditionally provide a substantial amount of hydroelectric power. But the drought has reduced water levels in major reservoirs to such an extent that hydropower plants could be forced to shut down in a few months. That, in turn, will greatly exacerbate power shortages in the region at the very time when demand is greatest.

Fortunately, there are a number of readily available reforms that, if adopted, can ameliorate some of the worst effects of this crisis.

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First, water conservation programs that create ways to use water more efficiently need to be greatly enhanced, promptly implemented and mandated by water managers in both the agricultural and urban sectors.

The agricultural sector consumes far more water than urban areas, and conservation programs that focus on expanding the use of already existing technology to improve crop irrigation practices would make a huge difference. There are newer drip irrigation systems that apply water directly to a plant's roots. This should replace traditional and less efficient "flood irrigation" practices, which involve covering the entire soil surface with a certain depth of water, whenever possible. Computerized systems can also identify how much water is required for different crops and when it can most efficiently be applied, which could generate further, substantial water savings. Finally, growing low-value, water-intensive crops like cotton and rice in the parched American West has never made much sense; under current drought conditions, it's simply irresponsible. Transitioning to higher value crops -- like beans and melons -- that require less water should be a priority for the agricultural sector in the American West.

In urban areas, between 40-70% of household use of water goes to landscaping. Residents as well as local government officials need to recognize that maintaining expansive, thirsty lawns is a luxury a water-starved region can no longer afford. Since the West's water crisis is only going to get worse, municipal water officials should mandate a prompt transition to drought-resistant landscaping that relies on plants like succulents and cacti to minimize the need for regular watering. The government could offer rebates to residents and businesses to incentivize that transition -- a move that would be cost-effective in the long term. And recycled rather than potable water should be mandated for watering urban parks and golf courses.

Second, water market schemes that put a fluctuating price on water depending on demand allow buyers and sellers to trade water through short-term leases and permanents sales of water rights. When there's a shortage, water markets can incentivize areas that have a surplus to conserve and sell it. These markets can also facilitate efficient exchanges of water that take different priorities into account. For example, a farmer could decide to forgo watering some alfalfa crops and sell water from his land to a municipality for domestic and commercial uses instead. These water markets, which are not as well-developed throughout the region as they are in places like Australia, should be more widely embraced. But it is critically important that these water markets be fully transparent and administered by public agencies, rather than commodified by corporations and hedge fund managers. Water transfers should be encouraged when they're in the public interest -- not simply as a way to maximize private revenue.

Third, a number of interstate water compacts-- agreements between two or more states that allocate water rights -- were negotiated in the early 20th century based on overinflated, unrealistic estimates of available water supplies. The Colorado River Compact of 1922 a federally approved agreement allocating Colorado River water supplies among seven Western states, is a prominent example. The current megadrought and climate trends make the water allocations specified in those compacts wildly overstated and impossible to fulfill. This creates a dangerous illusion that water is plentiful, which then makes it more difficult for western states to plan ahead for shortages. To address this problem, the US Secretary of the Interior should convene the compacting states to renegotiate interstate water agreements based on real-world conditions and the new water reality of the 21st century.

Finally, in the United States, water rights are allocated and administered at the state level. In many western states (California being a prominent example), these hidebound and antiquated systems that were created in the 19th century still allocate water rights based simply on who obtained them first, rather than assessing how much water is actually needed and ensuring the distribution is equitable. Additionally, most of these rights were granted by states decades or even centuries before environmental values and needs could be part of the equation. As a result, these water rights systems are simply not flexible or nimble enough to deal effectively with the protracted droughts and water shortages of the 21st century. State legislatures can and should act to reform those outdated policies without delay.

The unprecedented drought and water shortages currently confronting the American West present a clear and present danger to the health, economy and environment of the region. But necessary reforms, if timely and effectively implemented, can blunt the worst impacts of the West's unprecedented water crisis.

July 23, 2021

DACA in Doubt After Court Ruling: 3 Questions Answered

[Cross-posted from The Conversation]

By Kevin R. Johnson

Editor’s note: A federal court in Texas delivered a blow to an Obama-era federal program shielding hundreds of thousands of undocumented immigrants who came to the United States as children from being deported.

U.S. District Judge Andrew Hanen ruled on July 16, 2021, in Texas v. United States that Deferred Action for Childhood Arrivals, or DACA, was unlawful. Hanen put a hold on new applications. The decision caught many people off guard because, in 2020, the U.S. Supreme Court had rejected then-President Donald Trump’s effort to dismantle DACA, leaving the policy mostly intact.

The federal government under President Joe Biden has been accepting new applications for DACA protections. That must now stop, Hanen ruled.

We asked legal scholar Kevin Johnson, who specializes in immigration law, to explain what impact Hanen’s ruling will have on DACA – and what comes next.

1. If the Supreme Court already ruled DACA could continue, how can it be unlawful?

In Department of Homeland Security v. Regents of University of California, the Supreme Court did not decide whether DACA, established by President Barack Obama in 2012, was lawful. It held only that in its efforts to end DACA, the Trump administration had not followed the proper procedures required by the federal Administrative Procedure Act to terminate the policy.

In a 5-4 decision written by Chief Justice John Roberts, the court ruled that President Trump’s attempt to end DACA was “arbitrary and capricious” because it had failed to adequately account for, among other things, the severe disruption of the lives of DACA recipients who had relied on the program in making life decisions.

By so doing, Trump had violated the Administrative Procedure Act, and, thus, his administration’s attempt to invalidate DACA was unlawful. As a result, the immigrants already protected by DACA would maintain their legal status, and the ruling seemed to require the administration to allow new DACA applications.

But the Trump administration refused to allow new applications to the program.

In Texas v. United States, Judge Hanen reviewed a different decision by a different president – the Biden administration’s decision to resume accepting new DACA applications. But his ruling relied on the Supreme Court’s analysis of President Trump’s attempted termination of DACA.

Hanen found that the Biden administration had not reopened applications following appropriate procedures under the Administrative Procedure Act, which requires allowing public notice and comment on the policy. As such, he ruled, the Biden administration could not accept new DACA applications.

2. What does the Texas court’s decision mean for current DACA recipients?

Judge Hanen’s ruling only bars the approval of new DACA applications. It does not eliminate DACA relief for the approximately 690,000 people already enrolled in the program.

Current DACA recipients may still apply for renewals every two years. The Biden administration is likely to grant those renewals absent a change in the applicant’s circumstances, such as a serious criminal conviction.

Put simply, for the time being, current DACA recipients are protected from deportation, but the Biden administration can no longer offer that same protection to other undocumented immigrants brought to the U.S. as children – even if technically it seems they could apply for DACA.

3. What’s next in the DACA debate?

President Biden has said his administration will appeal Judge Hanen’s ruling, and the Supreme Court ultimately could take the case. If the ruling were reversed by a higher court, the Biden administration would be permitted to approve new DACA applications.

The courts aren’t the only place where DACA’s legal problems could be addressed. Biden, immigrant rights advocates and congressional Democrats, including Sen. Dick Durbin, are now calling for lawmakers to pass legislation permanently protecting DACA recipients.

The American Dream and Promise Act of 2019 – introduced to Congress during President Trump’s campaign to end DACA – would provide a pathway to citizenship for current DACA recipients. That immigration reform would give them lasting legal status, rather than the temporary – and revocable – relief from deportation offered by DACA.

July 22, 2021

IMMIGRATION, REFUGEE & CITIZENSHIP LAW eJOURNAL Vol. 22, No. 43

Edited by Kevin R. Johnson

Table of Contents

"The Impact of COVID-19 on Immigration Detention"

Fatma E. Marouf, Texas A&M University School of Law

"From Chinese Exclusion to Contemporary Systemic Racism in the Immigration Laws"

Kevin R. Johnson, University of California, Davis - School of Law

"Blue Card as a Method for Regulating Migration Processes in the European Union"

Dmitriy Ivanov, Moscow State Institute of International Relations (MGIMO)
Sofya Zavyalova, Moscow State Institute of International Relations (MGIMO)
Anastasia Trofimova, Moscow State Institute of International Relations (MGIMO)

"Tax Law's Migration"

Shayak Sarkar, University of California, Davis - School of Law

"Film as an Anti-Asylum Technique: International Law, Borders and the Gendering of Refugee Subjectivities"

Sara Dehm, University of Technology Sydney, Faculty of Law
Jordana Silverstein, University of Melbourne

"Is Free Movement of People Subverting Democracy in Europe? A Hirschmanian Hypothesis"

Vesco Paskalev, Brunel University London - Brunel Law School

"‘Love Mounts to the Throne with Law’: Citizenship in Northern Ireland and Seamus Heaney’s Antigone"

David Kenny, Trinity College Dublin School of Law

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

"The Impact of COVID-19 on Immigration Detention"  
Frontiers in Human Dynamics, Vol. 2, 2021
Texas A&M University School of Law Legal Studies Research Paper Forthcoming

FATMA E. MAROUF, Texas A&M University School of Law
Email: fatma.marouf@law.tamu.edu

COVID-19 has spread quickly through immigration detention facilities in the United States. As of December 2, 2020, there have been over 7,500 confirmed COVID-19 cases among detained noncitizens. This Article examines why COVID-19 spread rapidly in immigration detention facilities, how it has transformed detention and deportation proceedings, and what can be done to improve the situation for detained noncitizens. Part I identifies key factors that contributed to the rapid spread of COVID-19 in immigration detention. While these factors are not an exhaustive list, they highlight important weaknesses in the immigration detention system. Part II then examines how the pandemic changed the size of the population in detention, the length of detention, and the nature of removal proceedings. In Part III, the Article offers recommendations for mitigating the impact of COVID-19 on detained noncitizens. These recommendations include using more alternatives to detention, curtailing transfers between detention facilities, establishing a better tracking system for medically vulnerable detainees, prioritizing bond hearings and habeas petitions, and including immigration detainees among the groups to be offered COVID-19 vaccine in the initial phase of the vaccination program. The lessons learned from the spread of COVID-19 in immigration detention will hopefully lead to a better response to any future pandemics. In discussing these issues, the Article draws on national data from January 2019 through November 2020 published by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), two agencies within DHS. The main datasets used are detention statistics published by ICE for FY 2019 (Oct. 2018-Sep. 2019), FY 2020 (Oct. 2019-Sep. 2020), and the first two months of FY 2021 (Oct. 2020-Nov. 2020). These datasets include detention statistics about individuals arrested by ICE in the interior of the country, as well as by CBP at or near the border. Additionally, the Article draws on separate data published by CBP regarding the total number of apprehensions at the border based on its immigration authority under Title 8 of the United States Code, as well as the number of expulsions at the border based on its public health authority under Title 42 of the United States Code.

"From Chinese Exclusion to Contemporary Systemic Racism in the Immigration Laws"  
Indiana Law Review, forthcoming 2021
UC Davis Legal Studies Research Paper Forthcoming

KEVIN R. JOHNSON, University of California, Davis - School of Law
Email: krjohnson@ucdavis.edu

California today is widely considered to be a staunchly pro-immigrant state. That, however, has not always been the case. In fact, the Golden State in the late 1800s experienced widespread anti-Chinese agitation and frequent violence directed at Chinese immigrants and businesses. Political pressure ultimately pushed Congress to enact the first comprehensive federal immigration laws, the Chinese exclusion laws. This Essay argues that, surprisingly enough, those laws continue to reverberate through U.S. immigration law and its enforcement and allow systemic racism to flourish in the contemporary immigration system.

This Essay specifically analyzes how anti-Chinese activism in a small California mountain town at the tail-end of the nineteenth century led to state-wide, and ultimately national, discriminatory immigration laws. Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of legislation that began in earnest the process of excluding Chinese immigrants—and later immigrants from all of Asia—from the United States. In upholding the Act, the Supreme Court in an extraordinary decision declared that, because Congress possessed “plenary power”—absolute authority—over immigration, the immigration laws were completely immune from review of their constitutionality.

Well more than a century later, the plenary power doctrine lives on. Surviving the revolution of constitutional rights of the twentieth century, the doctrine enabled President Trump, a zealous advocate of tough-on-immigration measures, to pursue the most extreme approach to immigration of any modern president. As the nation attempts to understand how the Trump administration was able to no less than brutally treat immigrants, it is an especially important moment to consider the evolution of the plenary power doctrine, which today permits the treatment of immigrants in ways completely inconsistent with modern constitutional law. Ultimately, the national commitment to remove systemic racism from the nation’s social fabric requires the end of the plenary power doctrine.

"Blue Card as a Method for Regulating Migration Processes in the European Union"  

DMITRIY IVANOV, Moscow State Institute of International Relations (MGIMO)
Email: dmitriy.i.ivanov@mail.ru
SOFYA ZAVYALOVA, Moscow State Institute of International Relations (MGIMO)
ANASTASIA TROFIMOVA, Moscow State Institute of International Relations (MGIMO)

In this article, the authors consider one of the ways to regulate migration processes - the blue card, pay attention to the development process of this institution, its tasks and applicability in practice.

"Tax Law's Migration"  
Boston College Law Review, Forthcoming

SHAYAK SARKAR, University of California, Davis - School of Law
Email: ssarkar@fas.harvard.edu

Tax law has long left poor foreigners in precarity. Despite the Supreme Court striking down nineteenth-century state laws taxing migrants upon entry, the tax system has nonetheless determined who deserved a place, and what sort of place, within our borders. That tradition continues when the tax system’s emergency relief deprives otherwise needy noncitizens, giving migrants a lesser place.

This Article sheds light on this phenomenon—“tax law’s migration”—engaging two underappreciated connections between immigration and tax law. First, I use the term to explain the tax system’s long tradition of policing migrants. From colonial tax incentives for selective migration to joint tax-immigration worksite enforcement, tax law crystallizes financial welcome for some and hostility for others. Immigration status-based inequalities give rise to constitutional litigation constraining, but not extinguishing, tax law’s policing of migrants.

Second, I describe how migration and mobility rights are used to police tax compliance. Tax law now fashions penalties through the revocation of driver’s licenses and passports. A striking contrast emerges from comparing (often-affluent) citizen tax noncompliers with noncitizens. Remaining in the country becomes the penalty for those who may take it for granted but the privilege denied to those who seek little else.

Reckoning with tax law’s migration requires acknowledging the bureaucratization of ethnic and racial animus and the abandonment of economically vulnerable migrants during emergencies. We should be concerned about, rather than reflexively ratify, tax law’s migration.

"Film as an Anti-Asylum Technique: International Law, Borders and the Gendering of Refugee Subjectivities"  
Published in (2020) 29(3) Griffith Law Review

SARA DEHM, University of Technology Sydney, Faculty of Law
Email: sara.dehm@uts.edu.au
JORDANA SILVERSTEIN, University of Melbourne
Email: jordys@unimelb.edu.au

In 2015, the Australian government commissioned a telemovie as part of its strategic communication campaign to deter would-be asylum seekers from travelling to Australia unauthorised by boat. In this article we explore this film as one instance of state practices that seek to control migration at their borders, and a form of state messaging which uses gendered story telling techniques and characterisations to do so. Officially termed ‘public information campaigns’ (PIC) by states or ‘information strategies’ by international organisations such as the UNHCR, the use of such practices has increased in volume, frequency and prominence in recent years. While there has been some academic attention to PICs, to date, the gendered dimensions of these campaigns have remained largely unexamined. In this article, we argue that a feminist analysis of PIC is critical to understanding both how state borders ‘gender’ refugee subjectivities as well as international law’s authorisation of the violence of state borders more generally. By allocating blame and responsibility on individual refugees and their gendered choices, rather than on state actions and state violence, the film reveals how the institution and policing of state borders simultaneously rest upon gendered imaginaries of refugee responsibilitisation and the invisibilisation of state responsibility.

"Is Free Movement of People Subverting Democracy in Europe? A Hirschmanian Hypothesis"  

Stefan Mayr & Andreas Orator (eds.), Populism, Popular Sovereignty, and Public Reason (Central and Eastern European Forum for Legal, Political, and Social Theory Yearbook, Vol. 10), Peter Lang, Forthcoming 2021

VESCO PASKALEV, Brunel University London - Brunel Law School
Email: vesselin.paskalev@eui.eu

Mobility within the EU is normally understood as economic: a flow from poor members from Central and Eastern Europe (CEE) to the wealthier West which recently replaced a similar flow from the poorer South to the North. It is rarely noticed, however, that the same flows represent also movement from lower quality democracies to higher quality ones. If so, it is plausible to expect that this movement, on a scale unseen in Europe since WWII, will have some feedback effect on the quality of democracy too. Indeed, as we know from Albert Hirschman, citizens are facing a perennial dilemma between ‘voice’ and ‘exit’. The other choice they have to make according to him is between investing their time and energy in actions in the public sphere and pursuit of private welfare. By facilitating the exit option on one side and enhancing the opportunities for private prosperity on the other, the Union, for all the great things it provides, may subvert democracy in the member states. This effect may be negligible in most of the ‘old’ member states which have not seen significant outward migration but it should be very strong in the ‘new’ member states in the East.

Thus, the paper aims to initiate the systematic exploration of the relationship between emigration and democratic backsliding which is currently the most characteristic trend in CEE. It begins by an exploration of the dynamics of mobility, participation and private welfare which may (or may not) come into play in the context of European integration and of the free movement of people in particular. This is followed by a brief discussion of the available evidence for the relationship between mobility and political participation – all of it from other contexts. It concludes with an argument that the EU ought to compensate its adverse effect on domestic democracy and (very briefly) discusses the types of measures which could remedy the problem.

"‘Love Mounts to the Throne with Law’: Citizenship in Northern Ireland and Seamus Heaney’s Antigone"  
(2022) Law and Humanities (Forthcoming)

DAVID KENNY, Trinity College Dublin School of Law
Email: david.kenny@tcd.ie

In this paper, I examine disputes about citizenship in Northern Ireland though the lens of poet Seamus Heaney’s 2004 version of Antigone, The Burial at Thebes. Citizenship and identity in Northern Ireland—if people are Irish or British—has been a central issue of the conflict there. The 1998 peace agreement promised to allow people to identify however they wished, and not be forced to adopt an identity they rejected. But recent controversies, including Brexit and a major legal challenge, have shown that the legal concept of citizenship has not been able to fulfil this promise. Sophocles’ Antigone presents a great clash between the authority of the State and deep personal/morality commitments, and the tragedy that result. Heaney’s Antigone casts light on the fundamental clash at the centre of citizenship, and points us toward a flexible, contextual multi-level citizenship as a solution to law’s rigid conception of what a citizen must be.

July 21, 2021

A Silver Lining for Rural America in the Supreme Court’s Decision in Brnovich?

Cross-posted to the Daily Yonder and Legal Ruralism.

Lisa R. Pruitt & Ezera Miller-Walfish, Class of 2022

Although the U.S. Supreme Court’s recent voting rights decision in Brnovich v. Democratic National Committee was very bad news for rural residents (and, indeed, all voters) in terms of the precedent set, there is perhaps a silver lining to be found in the dissenting opinion, written by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor.  

That dissent took the concept of distance–rural spatiality–more seriously than any faction of the Supreme Court has ever done. Unlike the majority opinion, Kagan’s dissent examines the extra burden that living in a rural area can place on access, in this case to the ballot box.

In Brnovich v. Democratic National Committee, the Court split along ideological lines, voting 6-3 to uphold the State of Arizona’s restrictions on voting. The Arizona law limits the practice of ballot collection—a process whereby third-party individuals can return a voter’s signed and sealed mail-in ballot—and allows election officials to discard ballots cast at the wrong precinct.

We are a law professor and law student engaged in a thinking critically about the difference rurality makes to the operation of law, and we have followed this case for reasons other than those that have led election and constitutional law scholars to follow it: we’re interested in the case’s implications for rural populations and also how the Court understands lived realities in rural America.

Brnovich’s “Big Picture”

Before we get into the “rural weeds,” though, let us first refer to what Professor Rick Hasen of the UC Irvine School of Law said on his Election Law Blog about the big picture of Brnovich in relation to voting rights precedents.

[The decision] severely weakened Section 2 of the Voting Rights Act [a federal law dating to the Civil Rights Era] as a tool to fight against laws that make it harder to register and vote. Rather than focus on disparate impact—whether a law leads to minority voters registering or voting in lower numbers—the court applies a much broader totality of the circumstances test with a huge thumb on the scale favoring the state and its restrictive law. If a law imposes just a “usual burden of voting,” and the burden on minorities is not too much, and the state can assert (but does not need to prove) a significant interest in preventing voter fraud or another interest, then the law can stand.

The term “usual burden” is interesting here because in some prior cases, the focus has been on the opposite — on an “undue burden” on exercising the right. We will come back to that below when we draw the parallel between this voting rights case and another strand of constitutional litigation that uses an “undue burden” standard: abortion restrictions. On voting, Hasen continues:

When you couple this opinion with the 2008 ruling in the Crawford case, upholding Indiana’s voter ID law against a Fourteenth Amendment equal protection challenge, the 2013 ruling in Shelby County killing off the preclearance provision of the Voting Rights Act for states with a history of discrimination, and today’s reading of Section 2, the conservative Supreme Court has taken away all the major available tools for going after voting restrictions. This at a time when some Republican states are passing new restrictive voting law.
The Court today also makes it harder to prove intentional racial discrimination in passing a voting rule.

In a guest post on the Election Law Blog, Professor Doug Spencer provided further big-picture context in relation to the Court’s approach to other enumerated rights.

It’s hard to reconcile the Court’s indifference to inconveniences on voting rights (e.g., fn 11, slip op. at 16) with its uncompromising protection of gun rights or its “most-favored-nation” approach to religious freedom. Why are voting rights so different? And so less worthy of protection?

(Congratulations to Prof. Spencer and UC Davis' own Prof. Chris Elmendorf, whose Columbia Law Review article on Section  2 of the Voting Rigths Act was cited by Justice Kagan in dissent).

A New Response to Rurality

OK, enough on the broad U.S. Constitutional and voting rights context. We want to turn now to why this case is exceptional from a ruralist standpoint.

The backstory here is that we have been arguing in legal scholarship–if not in amicus briefs or any other form that would actually get directly before the Justices–that rural spatiality, aka material distance, is an obstacle the Supreme Court should take seriously in considering “undue burdens” on the exercise of constitutional rights like voting and abortion.

The context in which the issue of distance has arisen most frequently is abortion access, which one of us has written about herehere, and here. The Supreme Court of the United States has rarely grappled in any meaningful way with the distance a woman must travel to reach an abortion provider, an issue that arises when waiting periods make two trips necessary or when state abortion regulations force providers to close, thus forcing women to travel longer distances to other providers. But in Whole Woman’s Health v. Hellerstedt, Justice Breyer, writing for the majority in the 2016 opinion, used the word “rural” only once, though he used the word “miles” 19 times.

Specifically, Breyer quoted the trial (federal district) court opinion, which acknowledged the added burden the clinic closures were causing “poor, rural, or disadvantaged women.” The disadvantaged group most focused on in that litigation were Latinas living in the Rio Grande Valley, who tended to be “poor, rural and disadvantaged.” Interestingly, the Court did not again use the word “poor” or “poverty” in the majority opinion, which is bit unusual–and disappointing–given that poor women disproportionately seek abortions compared to their more affluent counterparts. The Court did, however, use the term “Rio Grande Valley” twice, which suggests that population drew particular solicitude.

The Hellerstedt Court’s use of “miles” also mostly tracked the district court’s findings, here about the specific impact of the law on women’s abortion access. Because the challenged law had the effect of closing abortion providers across Texas, the geographical distribution of abortion providers shifted, with these consequences:

[T]he number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%.

Also looming was the fact that if another pending restriction went into effect, Texas would have abortion providers “only in five metropolitan areas.” Finally, Breyer used “miles” when quoting the federal district court for the proposition that Texas is big–specifically, that it covers nearly 280,000 square miles and that 25 million people–5.4 million of them women of reproductive age–live on that vast land area.

Ultimately, Breyer’s opinion concluded:

We recognize that increased driving distances do not always constitute an “undue burden.” See Casey, 505 U. S., at 885–887 (joint opinion of O’Connor, KENNEDY, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit [from the Texas law], lead us to conclude that the record adequately supports the District Court’s “undue burden” conclusion.

That was a real victory for rural women, however defined, though the focus was much more on the distance–really increased distance–that any woman might have to travel to reach an abortion provider. This did not explicitly focus on rural women, but the Hellerstedt majority went much further than any prior opinion in taking seriously material distance, expressed as miles traveled.

Rural America and Voting Rights

That brings us to Brnovich and voting rights. In discussing this case, it makes sense to discuss first the number of times the dissent mentions the word “rural” because it far outnumbers–and outweighs–what the majority had to say. Justice Kagan, writing for the dissent, used the word “rural” twelve times, frequently as part of the phrase “rural Native Americans.” The reason for this linkage is that the Voting Rights Act responds to discrimination on the basis of race. Thus, the sensitivity–if there is any–is to racial or ethnic difference, and that difference gets paired with rurality in what scholars call intersectionality. That is, status as a Native American intersects with rurality to aggravate the disadvantage experienced by this population, just as status as a poor woman intersected with status as a Latina and rural location to disadvantage women in Texas’ Rio Grande Valley in Hellerstedt.

Here’s perhaps the most salient quote from Kagan’s dissent:

Arizona’s law mostly banning third-party ballot collection also results in a significant race-based disparity in voting opportunities. The problem with that law again lies in facts nearly unique to Arizona—here, the presence of rural Native American communities that lack ready access to mail service. Given that circumstance, the Arizona statute discriminates in just the way Section 2 proscribes. The majority once more comes to a different conclusion only by ignoring the local conditions with which Arizona’s law interacts.
The critical facts for evaluating the ballot-collection rule have to do with mail service. Most Arizonans vote by mail. But many rural Native American voters lack access to mail service, to a degree hard for most of us to fathom.

This language–humble for a Supreme Court Justice-–reminds me of Justice Thurgood Marshall’s rhetorical practice of putting himself in the shoes of litigants and acknowledging the challenge for Supreme Court justices to do just that. He wrote in United States v. Kras (1973), a case involving a court filing fee:

It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are. . . .It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.

One of us has made similar arguments re the Supreme Court’s struggle to grasp the burden of distance, especially with so many current justices having grown up in New York City. There is not, after all, much geographic diversity on the Court, and no current justice has any meaningful links to rurality.

Kagan’s dissent in Brnovich continues with a focus on the burden of rurality in relation to Native Americans, veering into the subject of those who rely on the U.S. mail in order to vote:

Only 18% of Native voters in rural counties receive home mail delivery, compared to 86% of white voters living in those counties. And for many or most, there is no nearby post office. Native Americans in rural Arizona “often must travel 45 minutes to 2 hours just to get to a mailbox.” (“Ready access to reliable and secure mail service is nonexistent” in some Native American communities). And between a quarter to a half of households in these Native communities do not have a car. See ibid. So getting ballots by mail and sending them back poses a serious challenge for Arizona’s rural Native Americans.

For that reason, an unusually high rate of Native Americans used to “return their early ballots with the assistance of third parties.” As the District Court found: “[F]or many Native Americans living in rural locations,” voting “is an activity that requires the active assistance of friends and neighbors.” So in some Native communities, third-party collection of ballots—mostly by fellow clan members—became “standard practice.” And stopping it, as one tribal election official testified, “would be a huge devastation.” [citations omitted]

It bears noting that Arizona, the sixth largest state in land area, is not alone in terms of challenges facing rural residents—and Native American voters in particular. Similar issues in Montana, the fourth largest state in the nation, are highlighted in this recent New York Times story, which focuses on the details of voting on Blackfeet reservation in the northwest part of the state.

Geography, poverty and politics all create obstacles for Native Americans. The Blackfeet reservation is roughly the size of Delaware but had only two election offices and four ballot drop-off locations last year, one of which was listed as open for just 14 hours over two days. Many other reservations in Montana have no polling places, meaning residents must go to the county seat to vote, and many don’t have cars or can’t afford to take time off.

The Majority’s Dismissiveness of Rural and Over-reliance on the U.S. Post Office

From a ruralist standpoint, the most shocking thing about the Brnovich litigation is the Supreme Court majority’s response to the dissent’s concern over these rural realities, especially as they impact Native Americans. Indeed, the majority was so dismissive of these concerns as to relegate its response to a footnote, footnote 21. Justice Alito, writing for the majority, notes the ways people will be still able to vote under the challenged Arizona law, e.g., the legality of having a ballot picked up and mailed by family or household members. Beyond that, he simply relies on provisions of the U.S. Code about the postal service, specifically the provisions about the circumstances under which small post offices may be closed. Here’s the full quote.

The burdens that fall on remote communities are mitigated by the long period of time prior to an election during which a vote may be cast either in person or by mail and by the legality of having a ballot picked up and mailed by family or household members. And in this suit, no individual voter testified that HB 2023 would make it significantly more difficult for him or her to vote. 329 F. Supp. 3d, at 871. Moreover, the Postal Service is required by law to “provide a maximum degree of effective and regular postal services to rural areas, communities, and small towns where post offices are not self-sustaining.” 39 U. S. C. §101(b); see also §403(b)(3). Small post offices may not be closed “solely for operating at a deficit,” §101(b), and any decision to close or consolidate a post office may be appealed to the Postal Regulatory Commission, see §404(d)(5). An alleged failure by the Postal Service to comply with its statutory obligations in a particular location does not in itself provide a ground for overturning a voting rule that applies throughout an entire state. [emphasis added]

So, on the one hand, there’s this federal statute that says the USPS must provide a “maximum degree of effective and regular” delivery even to places–including rural ones–where the local post office doesn’t “break even.” On the other hand, if the USPS fails to comply with this statute, that lack of compliance won’t be grounds for overturning a state voting law.

Folks who’ve followed the recent degradation in U.S. Postal Service will immediately see some irony in the majority’s reliance on this institution. Those who’ve followed the decades long efforts to close and consolidate rural post offices will see yet another level of irony. Indeed, the latest proposal to downgrade postal service, detailed here, would ”disproportionately affect states west of the Rocky Mountains,” which includes a lot of Indian Country–and many other rural places, too. Specifically, 57% of first-class mail sent in Montana and 55% sent in Arizona will take longer to arrive.

This has us wondering if rural postal service advocates will try to rely on this footnote in Brnovich majority to resist some future effort to close more post offices. The argument would be, we guess, that if the Supreme Court says it won’t be done because of this statute, then it should not be done. But what the footnote–and the statute–give, they also take away in saying that post offices can, of course, be closed, although there’s a right to appeal such closures.

This is all pretty grim—for all patrons of the U.S. Postal Service, but especially for rural and Native American folks whose local post offices are most likely to be on the chopping block.

The majority opinion in Brnovich is devastating for voting rights generally speaking, and for Native American and rural communities in particular. But there is a sliver of hope to be found here: the dissent in this case shows that the U.S. Supreme Court is capable of taking rurality seriously–at least as a factor intersecting with Native American status. The Brnovich dissent grapples with the lived realities of distance, with the material spatiality of the rural, in an even more explicit and compelling way than the Hellerstedt majority did five years ago.

This leaves us with hope that the groundwork laid by the Brnovich dissent will be invoked in some future case, if and when the liberal wing of the Court is in the majority and called on to take seriously the rights of rural folks and therefore also the state-imposed barriers that undermine their ability to exercise those rights. The liberal bloc has finally shown they know how to do this. Let’s hope they don’t forget if they are some day back in a position to be the final arbiters of what is or is not an “undue burden.”

Ezera Miller-Walfish is a rising third-year law student at UC Davis School of Law.  She grew up in rural northern New Mexico.  
July 12, 2021

Immigration in the Supreme Court, 2020 Term

[Cross-posted from Immigration Prof Blog]

By Kevin R. Johnson

In the 2020 Term, the Supreme Court decided five immigration cases.  The U.S. government prevailed in four of the five cases, an 80 percent success rate.  This rate was higher than that seen in recent Terms.  In my estimation, there are no blockbusters among the five immigration decisions.  The decisions primarily focused on interpreting the complexities of the Immigration & Nationality Act.  The cases are in the chronological order of their decision.

1.    Pereida v. Wilkinson.  Holding:  A noncitizen seeking cancellation of removal, who bears the burden of persuasion to secure relief, fails to carry his burden of showing that he has not been convicted of a disqualifying offense when the conviction is ambiguous about whether it included a disqualifying offense.  U.S. government wins.
 
Kate Evans for SCOTUSblog encapsulates the impacts of the decision:
 
"Under the majority’s reasoning, the decision is limited to cutting off deportation relief when a noncitizen’s conviction could be for a disqualifying or non-disqualifying offense and the criminal records are unclear. . . . What is clear is that unavailable or insufficient court records will prevent many long-time immigrants from even asking an immigration judge to consider the hardship of deportation on their U.S. citizen or lawful permanent resident family members. For them, instead of leaving the decision to the immigration judge’s discretion, deportation is now mandatory." 
 
2.    Niz-Chavez v. Garland.  Holding: A notice to appear sufficient to trigger the stop-time rule for measuring the time necessary for cancellation of removal is a single document containing all the information about the individual’s removal hearing specified in 8 U.S.C. § 1229(a)(1).  Niz-Chavez is a follow-up to the Court's decision in Pereira v. Sessions (2018), which held that a  the Notice to Appear (NTA) is invalid if it does not specify the date and time of the hearing.  That decision has had significant ripple effects on the notices provided to noncitizens by the U.S. government.  Noncitizen wins.
 
Ashley Oldfield in the Wake Forest Law Review notes that:  "Thus, Niz-Chavez presents another opportunity to challenge an immigration court’s jurisdiction.  After all, `if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.'”
 
3.    Garland v. Dai, Garland v. Alcaraz-Enriquez.  Holding: The Ninth Circuit's judicially-created rule that, absent an express adverse credibility finding by an immigration judge or the Board of Immigration Appeals, a court of appeals must treat the noncitizen’s testimony as credible, is inconsistent with the Immigration and Nationality Act.  U.S. government wins.
 
Victoria Neilson for CLINIC sums up the decision as follows:
 
"The Dai decision does not fundamentally change appellate review in asylum cases other than within the Ninth Circuit. It remains to be seen whether this interpretation will affect any other areas of judicial review beyond the limited credibility determination analysis in this case.  . . . 

Once the BIA issues its decision, federal courts will employ highly deferential review, upholding the BIA’s finding regarding credibility unless `any reasonable adjudicator' should have reached the opposite conclusion. Practitioners should be mindful of these standards at each stage of review and craft their arguments accordingly.  Where the record contains conflicting evidence, practitioners should explain why the inconsistencies should not lead to a finding of adverse credibility." (bold added)

4.    Sanchez v. Mayorkas.  Holding:  The Court  held 9-0 that two Temporary Status (TPS) recipients from El Salvador, who was not lawfully admitted into the United States, is not eligible to adjust his status to lawful permanent resident.  This decision affected tens of thousands of TPS recipients, many of whom had been threatened with loss of their legal status by the Trump administration.    U.S. government wins.
 
Elura Nanos for Law and Crime encapsulated the decision as follows:

"The Supreme Court of the United States unanimously decided Sanchez v. Mayorkas . . . , ruling that a married couple who fled earthquakes in El Salvador cannot receive green cards even though they have been lawfully in the U.S. for 20 years . . . . The ruling, which has potential to affect hundreds of thousands of immigrants with TPS, was not unexpected, but is being hailed as evidence of the urgency to create a `pathway to citizenship” for TPS holders and other immigrants.'"

5.    Johnson v. Guzman Chavez:  The issue in the case was whether the detention of a noncitizen who is subject to a reinstated removal order and who is pursuing withholding of removal based on alleged persecution is governed by one of two provisions of the immigration statute (8 U.S.C. § 1231 or 8 U.S.C. § 1226).  Jack Chin described the case as "rais[ing] a complex question about bond for migrants in removal proceedings."  Since 1996, when Congress expanded the immigrant detention powers of the U.S. government, the courts have seen increasing numbers of immigration detention cases in recent years.   

Holding:  The Court held that 8 U.S.C. § 1231, not § 1226, governs the detention of noncitizens subject to reinstated orders of removal.  Section 1231, which the U.S. government argued applied, was narrower than Section 1226, in providing bond hearings to noncitizens. Justice Alito delivered the opinion of the Court, except as to footnote 4, which was joined by Chief Justice Roberts, Kavanaugh, and Barrett.  Justice Breyer, joined by Justices Sotomayor and Kagan dissented.   The dissent summarized the case as follows:

"The question in this case is whether respondents are entitled to a bond hearing while immigration authorities engage in the lengthy process of determining whether respondents have the legal right (because of their fear of persecution or torture) to have their removal withheld.  The Court points to two statutory provisions that might answer that question.  The first, §1226, is a more general provision governing detention, and favors respondents. It says that `pending a decision on whether the alien is to be removed from the United States,' 8 U. S. C. §1226(a), the Government `may release the alien on . . . bond' or `conditional parole.' §§1226(a)(2)(A), (B) . . . .  The second, §1231, is a provision that more specifically applies to `aliens ordered removed,' and can be read to favor the Government because it does not expressly provide for a bond hearing during what it calls the 90-day `removal period.' 8 U. S. C. §1231(a)(2) . . . .

The Court agrees with the Government."

U.S. government wins.

***

By my count, the Supreme Court decided eight immigration cases in the 2019 Term, including the Deferred Action for Childhood Arrivals (Department of Homeland Security v. Regents of the University of California) and the expedited removal (Department of Homeland Security v. Thuraissigiam) cases.   It does not seem to me that the Court's immigration decisions this Term were as significant in terms of legal change or impacts as either of the DACA or expedited removal cases.
 
The Court might have ended up reviewing more immigration cases.  The Court dropped from the docket a couple of cases after the Biden administration changed Trump administration policies.  Those cases were challenges to the controversial  Migrant Protection Protocol (Remain in Mexico) policy and the Trump administration's reinvigorated "public charge" rule.
 
There are, of course, other decisions from the 2020 Term that do directly interpret the U.S. immigration laws but will affect noncitizens.  One of those cases is Borden v. United States, which involved the interpretation of the term "violent felony" in a federal criminal statute and likely will affect the interpretation of "aggravated felony" for removal purposes. 
 
So far, the Court has only granted certiorari in one immigration case for the 2021 Term.   Patel v. Garland raises the question whether 8 U.S.C. 1252(a)(2)(B)(i) precludes judicial review of non-discretionary determinations underlying the determination of the Board of Immigration Appeals that a noncitizen is inadmissible to the United States for permanent residence and therefore ineligible for adjustment of status.  John Elwood for SCOTUSblog explained the basics of the case as follows:

"Petitioner Pankajkumar Patel checked a box on a Georgia driver’s license application falsely stating that he is a U.S. citizen, even though he was eligible for a license regardless of his citizenship. . . . When Patel later sought to adjust his status to lawful permanent resident and obtain a green card, a divided panel of the Board of Immigration Appeals denied him relief, holding that he is inadmissible because he `falsely represented' himself as a U.S. citizen for a benefit under state law. . . . .  When Patel sought review of that decision, the en banc U.S. Court of Appeals for the 11th Circuit parted with decisions of other courts — and rejected the government’s own reading of the governing statute — to hold that the court lacked jurisdiction to review threshold eligibility findings for discretionary relief from removal, including whether the immigrant is inadmissible for incorrectly representing himself as a U.S. citizen. (The government takes the position that the statute forecloses only review of discretionary decisions not to grant relief, not factual findings that are factored into those decisions.) "

July 9, 2021

'Con Law' Episode 54: 'Bong Hits for Jesus'

[Cross-posted from What Trump Can Teach Us About Con Law]

By Elizabeth Joh

We discuss three cases from the recently wrapped Supreme Court term: California v. Texas, Mahanoy Area School District v. B.L., and Lange v. California. (This episode contains explicit language – quoted from a cheerleader).

Listen to episode 54 of What Trump Can Teach Us About Con Law.

June 23, 2021

Two Days at the Nogales Border

[Cross-posted from ImmigrationProf Blog]

Revised edition posted June 24, 2021

By Raquel Aldana

We parked our cars on the U.S. side of the border at an empty parking lot in the desolate, hot Sonoran desert landscape. We were a small team of four: a lawyer, a student legal intern, a community organizer, and I, a law professor from King Hall. I was there to volunteer with a small team of attorneys from Arizona which has been coming to the Nogales border for the past four years to provide legal orientations to asylum-seekers. In recent months, they have shifted the focus of their services to helping process hundreds of asylum seekers stranded in Mexico.


Our uneventful, uninterrupted, and unnoticed crossing by foot across the Mexican border made me conscious immediately of the vastly different experiences of human mobility across borders that we, as U.S. citizens, experience. I confess, however, that I subtly checked for the umpteenth time that my little blue U.S. passport was indeed in my backpack as I looked over the other side to the U.S. border I would be crossing back to later that day. As a Central American immigrant and naturalized citizen of nearly four decades, somehow that fleeing yet lingering feeling of outsider overtook me. I know it had a lot to do with my extremely personal identification with the migrants I would be meeting in the next two days. The chasm between the enormity of the circumstances that forced their displacement and the meager solutions we could offer them overwhelmed me.


The circumstances at the border have been fluid since the Biden administration took office. In theory, the border remains shut for asylum seekers based on so-called health reasons in response to the pandemic under Title 42. But now, a type of slightly less chaotic metering process was in place – one that essentially permitted migrants lucky enough to access non-profits “get in line” to be allowed to present themselves to the border to seek asylum in a process coordinated by different binational and/or international humanitarian organizations along the southern border. That was progress. When I was first trained by the Arizona non-profit’s border attorneys back in March of this year, only migrants with extreme and urgent humanitarian grounds for seeking parole, usually based on grave victimization in Mexico, could hope to enter. That process literally called for a sifting of trauma among a sea of trauma, and it felt hallow. This new process, which seemed mostly to create more filters, now in the hands of non-profits, to ensure that migrants both had a “fear of return” + a negative COVID-19 test or an active MPP case + a negative COVID-19 test before presenting themselves at the border, created some path to an otherwise shut border. Especially for those stuck in Mexico waiting for this moment, some for as long as two years, this provided renewed hope.


Hope is exactly what I encountered with at least nine of the ten migrants I met over the course of two days. Here are their brief profiles:[1] a Mexican mother of five and her husband who had made their living selling fruits and vegetables in the street until the extortionists threatened their lives and livelihood; a young Salvadorean couple and their toddler, fleeing after being forced to testify against a gang for a murder and who feared for their lives; a Honduran woman and her son running away from a gang-ridden after a family member was murdered; two adult siblings each running from different forms of violence: one from a much older, abusive husband to whom she had been married off as a child, forcing her to leave behind her children; the other from an extortionist gang he had been violently forced to join and who now sought to kill him for his desertion; a gay man from who had been nearly killed by three strangers who could not stand his homosexuality; and a Venezuelan refugee family who firmly resettled in Mexico but was now facing extortion from a gang who was threatening his livelihood in his new home. I felt that what I could offer them was so little: a kind ear to listen and validate their suffering, and my attempt to prepare them as much as possible for their journey if and when they made it to the other side. For some, I had to tell them they were ineligible for asylum and could only seek withholding of removal or relief under the Convention Against Torture (CAT). Others I had to prepare for the likely possibility of mandatory detention and tried to paint a picture for them as much as possible of this reality. For all, I had to inform them how hard it is to win asylum and how desperately they would need to secure a lawyer to even have a shot at winning. The only saving grace was that all of them had family in the U.S. I urged them to tell their family to identify a lawyer in anticipation of their arrival. In speaking to each of them, I realized how much hope is altered by our circumstances. Their desperation made them either ignore or accept with resignation my account of the reality that awaited them when they crossed the border. All but one remained resolute to cross the border. I fully understood it. One of them who was barred from asylum due to prior immigration history said to me, as he held his son sleeping soundly in his arms, “maybe a miracle will happen and they will grant me asylum.” His hope eclipsed my legal explanation of his ineligibility. At that, I could only smile as I touched his shoulder and caressed his little boy’s hand and wished him well.


I have spent over two decades of my professional career as a human rights lawyer and scholar trying to address the underlying causes of forced migration. I remember a priest who once described the phenomena of forced migration as the most visible expression of failed democracies, the type we can no longer ignore because their suffering has spilled across borders. I fully grasp the response of many in the U.S. who feel we simply cannot absorb all the world’s problems by accepting all refugees, no matter how awful their stories. It is much easier to say this when you have never had to sit across the table from the migrant who most desperately seeks no more than a fourth of what you have. I do believe there is a lot we can do to help migrants stay home and live dignified lives. If you are interested, I invite you to read two of my most recent reflections on serious and complex solutions that we must take up if we are to reduce forced migration from Central America. You can find these here and here. What we cannot do is pretend that harsh immigration policies that shut down borders, detain migrants, or that make asylum standards nearly unreachable will suffice to quell the desperate hope that fuels forced migration.


One of the migrants with me during these past few days was a ten-year-old boy. He was beautiful and surprisingly happy and well-adjusted. Unlike his mom, his eyes sparkled as he mischievously hovered over me to marvel at how fast I typed and to ask me questions about living in the U.S. and being a lawyer. I told him I, too, had come to the U.S. at the age of ten. I wished so much, then, that his life could be closer to mine at his age. You see, I came with my entire family in a plane, through a church sponsored visa in 1982. I would learn later that we, too, had received death threats. But my parents, as ministers of a U.S.-based church, had access to church-sponsored visas. I, too, was a precocious, intelligent child, like that beautiful Honduran boy. I remember looking up at the “EXIT” sign as we exited U.S. immigration at the Miami airport. “Look dad,” I exclaimed proudly, “this is a great country, they are wishing us success.” You see, exito means success in Spanish. This is my desperate hope: that rather than exit we can hope for exito for these migrants' lives stuck at the border.   



June 22, 2021

IMMIGRATION, REFUGEE & CITIZENSHIP LAW eJOURNAL, Vol. 22, No. 41

Edited by Kevin R. Johnson

Table of Contents

"Niz-Chavez v. Garland: Pereira Groundhog Day"

Ashley Oldfield, Independent

"Trump’s Policy of Putting Kids in Cages: Six Dead, Thousands Separated From Parents, Making America Great Again?"

David R. Katner, Tulane University - Law School

"Enabling the Best Interests Factors"

Adrian Alvarez, St. John's University - School of Law

"White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States"

Elena A. Baylis, University of Pittsburgh - School of Law

"Migrant Protection Protocols and the Death of Asylum"

Austin Kocher, Transactional Records Access Clearinghouse

"Refugee Entrepreneurship: A Systematic Review of Prior Research and Agenda for Future Research"

Alex Newman, Deakin University - Faculty of Business and Law
Luke Macaulay, Deakin University - Faculty of Business and Law
Karen Dunwoodie, Deakin University - Faculty of Business and Law

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

"Niz-Chavez v. Garland: Pereira Groundhog Day"  

ASHLEY OLDFIELD, Independent
Email: oldfab17@gmail.com

In Niz-Chavez v. Garland, the Supreme Court of the United States addressed, for the second time, what constitutes a notice to appear under 8 U.S.C. § 1229(a)(1). In doing so, the Court may have also resurrected challenges to an immigration court’s jurisdiction which first arose following the Court’s decision in Pereira v. Sessions.

"Trump’s Policy of Putting Kids in Cages: Six Dead, Thousands Separated From Parents, Making America Great Again?"  
28 Virginia Journal of Social Policy and the Law 87 (2021)
Tulane Public Law Research Paper No. 21-2

DAVID R. KATNER, Tulane University - Law School
Email: dkatner@law.tulane.edu

For the first time in history, the U.S. executive branch enacted an immigration policy designed to inflict such pain and trauma on children and their families so as to dissuade families from Latin America from coming to the U.S. seeking asylum. With six children dead and thousands separated from their families, we continue to learn more about the atrocities inflicted on these migrants seeking a better life. Women were subjected to nonconsensual hysterectomies, families were tortured, and the toxic stress inflicted may require years to resolve. This article seeks accountability for the intentional acts imposed by the U.S. government in the form of possible legal remedies. This policy marks the lowest point in U.S. immigration policy, a country with origins rooted in reliance on migrants from every part of the world to make the nation a better place.

"Enabling the Best Interests Factors"  
St. John's Legal Studies Research Paper No. 21-0007

ADRIAN ALVAREZ, St. John's University - School of Law
Email: alvareza@stjohns.edu

In February 2019, the media reported that the Office of Refugee Resettlement (ORR)—an agency within the U.S. Department of Health and Human Services (HHS) charged with the care and custody of unaccompanied immigrant children—was using minors’ admissions of prior gang affiliation during confidential therapy sessions as the sole criteria for “stepping up” children from low-security shelters to more restrictive and punitive detention facilities. ORR was also then sharing the therapy notes with the Department of Homeland Security (DHS) to use them against children in deportation proceedings. The newspaper article that broke the story noted that while the information sharing between HHS and DHS was “technically legal,” it was “a profound violation of patient confidentiality.” This article argues that these practices are not “technically legal” at all. They are illegal because they violate basic best interests principles now enshrined in the William Wilberforce Trafficking Victims Protection Recovery Act of 2008 (TVPRA), and, in some instances, they may violate Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (Title II), federal anti-discrimination laws designed to protect people with disabilities.

The best interests approach “is a dynamic concept that requires an assessment appropriate to the specific context,” and stepping up a child to a more restrictive setting based solely on prior gang affiliation is inconsistent with the procedural aspects of the best interests standard. Moreover, using gang affiliation revealed in therapy sessions as the sole criteria for sending a child to a more restrictive setting may also violate federal anti-discrimination statutes designed to protect children with disabilities. For instance, Section 504 and Title II’s regulations prohibit recipients of federal funds and public entities, respectively, from using “criteria or methods of administration . . . that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons.” Because confidentiality is required for therapy to succeed, this policy may unintentionally have the effect of substantially impairing unaccompanied minors from receiving the intended therapeutic benefits of the therapy session. Although gang affiliation is disability neutral on its face, it has a disparate impact on unaccompanied minors with psychosocial disabilities because there is a correlation between gang affiliation and emotional and behavioral disorders.

"White Supremacy, Police Brutality, and Family Separation: Preventing Crimes Against Humanity Within the United States"  
University of Illinois Law Review, 2022 Forthcoming
U. of Pittsburgh Legal Studies Research Paper No. 2021-16

ELENA A. BAYLIS, University of Pittsburgh - School of Law
Email: ebaylis@pitt.edu

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have a federal law prohibiting crimes against humanity. This Article first applies international law to define crimes against humanity and assess the risk of crimes against humanity occurring within the United States. It then turns to domestic law to evaluate the potential for a federal law or other federal measures to protect against crimes against humanity, including the political obstacles, the likelihood that any future legislation will depart significantly from international law, and the implications for effectiveness.

"Migrant Protection Protocols and the Death of Asylum"  
Journal of Latin American Geography

AUSTIN KOCHER, Transactional Records Access Clearinghouse
Email: ackocher@syr.edu

From January 2019 to January 2021, a Trump-era policy known as the Migrant Protection Protocols (MPP) forced asylum seekers arriving at the U.S.-Mexico border to wait for their hearings in dangerous parts of northern Mexico. MPP had disastrous consequences: very few migrants in MPP had a meaningful chance to request asylum compared to other asylum seekers, and the forced migrants waiting in Mexico faced pervasive violence. President Biden suspended new enrollments in the program on his first day in office and, by late February 2021, migrants who were living in the refugee camp that emerged as a result of MPP in Matamoros, Mexico, began to enter the United States to pursue their asylum claims. As the MPP program—also known as Remain in Mexico—appears to come to a close, this essay examines key aspects of the program through the perspective of ontological, political, and physical death that Alison Mountz theorizes in her recent book The Death of Asylum. Drawing on Mountz’s work, I view MPP as symptomatic of a concerted though spatially uneven assault across the developed world on both the institutions and operations of asylum as a practice as well as on asylum seekers themselves.

"Refugee Entrepreneurship: A Systematic Review of Prior Research and Agenda for Future Research"  
JOBR-D-21-02296

ALEX NEWMAN, Deakin University - Faculty of Business and Law
Email: a.newman@deakin.edu.au
LUKE MACAULAY, Deakin University - Faculty of Business and Law
Email: l.macaulay@deakin.edu.au
KAREN DUNWOODIE, Deakin University - Faculty of Business and Law
Email: k.dunwoodie@deakin.edu.au

In recent years, the refugee crisis has emerged as a grand societal challenge with a host of economic, social, and political implications. As of 2020 there were around 26 million people registered with the UNHCR as refugees. While refugees are considered by some to be a burden on their host countries, there is growing evidence that they make significant contributions to the economies of their host countries, with rates of entrepreneurship higher than other migrant groups and host country nationals. To take stock of what we know about refugee entrepreneurship, this article undertakes a systematic review of the literature. The systematic review provides insights on themes regarding facilitators and barriers to refugees’ entry into entrepreneurship, as well as identifying gaps in our extant knowledge. Based on these gaps, a future research agenda is proposed which targets empirical and theoretical advancement of the field of refugee entrepreneurship.

June 18, 2021

The Surprisingly Broad Implications of Nestlé USA, Inc. v. Doe for Human Rights Litigation and Extraterritoriality

[Cross-posted from Just Security]

By William S. Dodge

In Nestlé USA, Inc. v. Doe, the U.S. Supreme Court took up the question of corporate liability for human rights violations under the Alien Tort Statute (ATS) for the third time. The Court again failed to resolve the question, holding instead that application of the ATS cause of action would be impermissibly extraterritorial in this case because nearly all the defendants’ relevant conduct occurred in Ivory Coast. At first glance, this holding appears narrow, which is no doubt why it attracted the votes of eight Justices. But the decision has potentially broad implications for ATS suits against individuals and for the extraterritorial application of federal statutes in other areas. This article will briefly discuss the questions of corporate liability and limiting the ATS cause of action before exploring the Court’s extraterritoriality holding and its potentially dramatic implications.

Background

The defendants are U.S. companies that buy cocoa from Ivory Coast. The plaintiffs are individuals from Mali who were trafficked to Ivory Coast as child slaves to work on cocoa farms. Plaintiffs alleged that defendants aided and abetted their slavery by providing the farms that held them with technical and financial resources despite knowing or having reason to know that the farms were using children as slaves. Plaintiffs alleged that the defendants made all their major operational decisions from the United States.

The ATS is a jurisdictional provision that was part of the First Judiciary Act of 1789. As codified today, it gives federal district courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In 1980, the Second Circuit held in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), that non-U.S. citizen plaintiffs could use the ATS to sue a foreign police inspector who had come to the United States to recover damages for torture that occurred abroad, reasoning that the plaintiffs were “aliens,” that torture is a tort, and that torture violates modern customary international law.

In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court rejected arguments that a statutory cause of action should be required for claims under the ATS and that claims should be limited to the three violations of the law of nations that the First Congress had in mind in 1789 (violations of safe-conducts, infringement of the rights of ambassadors, and piracy). The Court recognized an implied, federal-common-law cause of action for violations of modern international law that are as generally accepted and specifically defined as the three historical paradigms, although the Court found that Alvarez-Machain’s claims of arbitrary detention did not meet that standard.

In 2010, the Second Circuit held in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), that corporations could never be sued under the ATS because corporate liability for human rights violations did not meet the Sosa standard. The Supreme Court granted review on the corporate liability question, but after reargument the Court declined to answer the question. Instead, the Court applied the presumption against extraterritoriality to the ATS cause of action, holding that ATS claims must “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application” and that “mere corporate presence” in the United States is insufficient. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124-25 (2013). The Court tried again to answer the corporate liability question in Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018). Again, it failed, holding only that the ATS cause of action does not extend to foreign corporations. Id. at 1407.

The Nestlé case presented the Court with a third opportunity to decide the corporate liability question because the defendants were U.S. corporations not protected by Jesner. But once again, the Court disposed of the case on other grounds. Justice Thomas concluded in Part II of his opinion (joined by every member of the Court except Justice Alito) that applying the ATS cause of action would be impermissibly extraterritorial because the plaintiffs had not alleged sufficient relevant conduct in the United States. Justice Thomas went on in Part III to propose that the ATS cause of action should be limited to the three historical paradigms that the First Congress had in mind, but he was joined only by Justices Gorsuch and Kavanaugh. Justice Sotomayor (joined by Justices Breyer and Kagan), agreed with Justice Thomas about extraterritoriality but disagreed about limiting the ATS cause of action. She also reiterated her view that the ATS cause of action should extend to corporations. Justices Gorsuch and Alito agreed with Justice Sotomayor that there was no basis for limiting the ATS cause of action to natural persons (which, yes, makes five Justices on that point of law). Justice Gorsuch (joined by Justice Kavanaugh), however, would have overruled Sosa, whereas Justice Alito would not have reached the extraterritoriality question before deciding other issues he though should be preliminary.

Corporate Liability

The Court granted review in Nestlé to decide the corporate liability question that it left open in Kiobel and Jesner. In Jesner, the plurality and the dissent fundamentally disagreed on how the question should be framed. Justice Kennedy’s plurality opinion asked whether there was a “norm of corporate liability” under international law, whereas Justice Sotomayor’s dissent read Sosa to require an international consensus about the prohibited “substantive conduct” but not about the “forms of liability.” As I have previously explained at Just Security, Justice Sotomayor’s framing is most consistent with international law, which prohibits certain violations of human rights but leaves it to each nation to decide whether and how to provide remedies for such violations. (Full disclosure: I wrote an amicus brief on this question in Jesner and a similar brief in Nestlé.) The Trump administration reversed the position on corporate liability under the ATS that the United States had taken in Kiobel and Jesner, arguing that the Supreme Court should reject corporate liability—not on international law grounds but because the decision should be left to Congress.

Although the majority opinion in Nestlé did not address the question of corporate liability, five Justices saw no reason to distinguish between corporations and natural persons as defendants. Justice Gorsuch wrote: “The notion that corporations are immune from suit under the ATS cannot be reconciled with the statutory text and original understanding.” Justice Alito added in dissent that “corporate status does not justify special immunity.” And Justice Sotomayor (joined by Justices Breyer and Kagan) agreed (n. 4). There was no discussion in any of the Nestlé opinions of the need for a “norm of corporate liability” under international law, and one hopes that this spurious argument has finally been put to rest.

Limiting Sosa

In Part III of his opinion, Justice Thomas (joined by Justices Gorsuch and Kavanaugh) would have held “that federal courts should not recognize private rights of action for violations of international law beyond the three historical torts identified in Sosa.” In Justice Thomas’s view, “creating a cause of action to enforce international law beyond [the] three historical torts invariably gives rise to foreign-policy concerns,” warranting deference to Congress. Congress had also shown itself willing and able to address human trafficking by amending the Trafficking Victims Protection Reauthorization Act (TVPRA) to add a private right of action, he explained. With respect to torts beyond the three historical paradigms, Justice Thomas concluded, “there always is a sound reason to defer to Congress.” In Part II of his concurrence, Justice Gorsuch (joined by Justice Kavanaugh) largely echoed Justice Thomas but suggested more explicitly that the Court should overrule Sosa or, as he put it, avoid “adhering to a precedent that seized power we do not possess.”

Justice Sotomayor spent her concurring opinion, in which Justices Breyer and Kagan joined, defending Sosa against Justice Thomas’s attack, which would have overruled that decision “in all but name.” It was the First Congress’s assessment, she noted, “that diplomatic strife is best avoided by providing a federal fo­rum to redress those law-of-nations torts that, if not reme­died, could bring international opprobrium upon the United States.” “Barring some extraordinary collateral consequence that could not have been foreseen by Congress,” she continued, “federal courts should not, under the guise of judicial discretion, second-guess that legislative decision.” Although Congress could have limited the ATS to the three historical paradigms with which it was familiar, it did not do so. Instead, Congress relied on “international law [to] suppl[y] the substantive contours of actionable torts.” Justice Sotomayor concluded that to “suggest that identifying actionable torts risks upsetting the careful balance of interests struck by the lawmakers is ahistorical at best” (quotation marks and alterations omitted).

Extraterritoriality

The Justices found more room for agreement on the question of extraterritoriality, with eight Justices joining Part II of Justice Thomas’s opinion. Only Justice Alito dissented, reasoning that the extraterritoriality question should not be addressed before other questions that the Court had not considered.

The Court did not apply Kiobel’s “touch and concern” test but rather the two-step framework for the presumption against extraterritoriality subsequently articulated in RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016). Under that framework, as I have explained at length elsewhere, courts determine the geographic scope of a statutory provision by looking for a clear indication of that scope (step one) or by looking to the focus of the provision (step two).

In Kiobel, the Supreme Court found that there was no clear indication of geographic scope with respect to the ATS cause of action and did not address the focus question. In Nestlé, the parties disagreed about the focus of the ATS, but the Court found it unnecessary to resolve the focus question because it was still up to the plaintiffs to “establish that ‘the conduct relevant to the statute’s focus occurred in the United States’” (quoting RJR, 136 S. Ct. at 2101). The Court in Nestlé noted that “nearly all the conduct that [the plaintiffs] say aided and abetted forced labor—providing training, fertilizer, tools, and cash to overseas farms—occurred in Ivory Coast.” Plaintiffs had alleged that the defendants made their major operational decisions in the United States, but the Court concluded that “allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.”

The key language from RJR on which the Nestlé decision turned is worth quoting in full:

If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute’s “focus.” If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory.

In RJR, the language about “conduct relevant to the statute’s focus” was dictum (as I have explained in greater detail at pp. 49-50 here). When the Court in RJR came to apply the second step of the analysis to RICO’s private right of action, the Court made no mention of the need for conduct in the United States, holding simply that the provision “requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries.” RJR, 136 S. Ct. at 2111. Similarly, in Morrison v. National Australia Bank, Ltd., 561 U.S. 247 (2010), the Supreme Court found the location of the conduct irrelevant in applying the presumption against extraterritorially, adopting a “transactional test” for the geographic scope of Section 10(b) of the Securities Exchange Act that turns entirely on the location of the transaction. Id. at 269-70. Based on these decisions, the Restatement (Fourth) of Foreign Relations Law rejected a separate requirement of conduct in the United States when the focus of the statutory provision is on something other than conduct as it was in RJR and Morrison, providing simply: “If whatever is the focus of the provision occurred in the United States, then application of the provision is considered domestic and is permitted” (§ 404 cmt. c).

Nestlé’s reliance on RJR’s dictum has potentially broad implications both for ATS cases and for the Court’s approach to extraterritoriality more generally. With respect to ATS cases, if plaintiffs must show relevant conduct in the United States, it is hard to see how traditional ATS cases against individual defendants can continue. The Second Circuit’s seminal decision in Filartiga, for example, involved torture by a Paraguayan police inspector in Paraguay. The connection to the United States was the fact that the inspector later came to the United States. That fact might have been sufficient to satisfy Kiobel’s “touch and concern” test. See, e.g., Jane W. v. Thomas, 354 F. Supp. 3d 630, 639 (E.D. Pa. 2018) (finding residence sufficient to satisfy “touch and concern” test). But it seems unlikely to satisfy Nestlé’s requirement of relevant conduct in the United States.

Of course, many cases against individual defendants are now covered by the Torture Victim Protection Act (TVPA), which provides an express statutory cause of action against natural persons for torture and extrajudicial killing under color of foreign law. Claims for torture and extrajudicial killing may therefore continue under the TVPA, subject to federal common law rules governing foreign official immunity. But the TVPA does not cover other well-established human rights violations like genocide and war crimes. Genocide and war crimes do sometimes involve torture and killing, but the TVPA’s color-of-foreign-law requirement would nonetheless preclude those suits against non-state actors. The TVPA also does not cover piracy. Almost everyone seems to agree that piracy was within the First Congress’s contemplation when it passed the ATS, but piracy does not involve conduct in the United States and so would not be actionable under Nestlé. It seems odd that Justices Breyer, Sotomayor, and Kagan would join the majority’s extraterritoriality analysis without some consideration of its implications for ATS claims against individuals.

Beyond the human rights context, adding a requirement of relevant conduct in the United States is likely to disturb the law concerning extraterritoriality in other areas—and in ways that might concern other members of the majority too. For example, Morrison rejected the Second Circuit’s conduct and effects tests for securities fraud claims, finding those tests to be “unpredictable and inconsistent,” in favor of a more easily administrable test that turns on the location of the transaction. Lower courts have expressly held that Morrison’s transactional test does not require conduct in the United States. See Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 69 (2d Cir. 2012). Nestlé upsets that understanding by suggesting that conduct relevant to the transaction must also occur in the United States. Lower courts will now have to consider not only whether a separate conduct requirement applies to securities fraud claims but also what kind of conduct is relevant to the transaction and how much conduct is required, making the application of Section 10(b) in transnational cases unpredictable and inconsistent once again. Nestlé will not unsettle every established test for geographic scope, because some tests are based on clear indications of congressional intent (e.g. Title VII of the 1964 Civil Rights Act) and others were fixed before the presumption against extraterritoriality was reborn in 1991 (e.g. the effects test for antitrust law). But Nestlé is likely to make life more complicated for the lower courts considering questions of extraterritoriality than the Justices anticipated. Indeed, if the Justices had anticipated these downstream effects, they would have presumably provided some guidance to avoid them.

Conclusion

Nestlé certainly does not mean the end of human rights litigation in U.S. courts. Cases against individual defendants may continue under the TVPA, the TVPRA, and similar statutes granting express causes of action. But Nestlé does seem to mark the end of the Filartiga line of ATS cases against individual defendants whose relevant conduct occurs outside the United States. It also appears to limit the ATS cause of action to claims against U.S. corporations based on conduct in the United States that goes beyond making decisions about how to conduct operations abroad. There may be cases that fit that description, but they are likely to be few and far between.

June 14, 2021

Officials Should Force San Diego to Follow California Housing Law. Inaction Has Consequences.

[Cross-posted from the San Diego Union-Tribune]

By Christopher Elmendorf, Ricardo Flores and Jon Wizard

Last month, California’s Department of Housing and Community Development (HCD) notified San Diego that the city will be out of compliance with the state’s “housing element” law as of June 16 unless it commits to serious corrective actions before then. This is a make-or-break moment for San Diego and for the future of housing in the state.

Every eight years, California cities must adopt a state-approved plan, called a housing element, which shows how the city will accommodate its share of regionally needed housing. This law has been on the books for decades but was toothless until recently. Starting in 2017, the Legislature bulked up regional housing targets, added new sanctions, required cities to loosen zoning restrictions enough to achieve their share of the regional target, and insisted that housing plans undo historical patterns of segregation and exclusion.

What HCD decides in San Diego’s case will establish a landmark precedent for cities throughout the state — San Diego County is the first region to go through this process. It will also have immediate ramifications for San Diegans. Under state law, a city that lacks a compliant housing plan forfeits authority to deny or downsize affordable housing projects on the basis of the city’s zoning code and general plan. Thus, if San Diego falls out of compliance, it would have no choice but to approve large apartment and condo buildings even in neighborhoods zoned just for single-family homes.

Perhaps to shelter the city from this serious sanction, HCD has thus far treated San Diego with kid gloves. San Diego’s housing plan was due last September, but the plan the city adopted and sent to HCD had grave shortcomings. UCLA professor Paavo Monkkonen and his students found that 65 percent of the sites San Diego identified for low-income and multifamily housing are located in the poorest third of the city’s neighborhoods. San Diego has an unusually large percentage of its land area reserved exclusively for single-family homes, yet the city’s plan did not open any of these neighborhoods to multifamily housing. This flaunts the Legislature’s mandate to “affirmatively further fair housing.”

San Diego’s housing plan also presumed that every single parcel of land identified as having redevelopment potential will definitely be developed for new housing during the eight-year planning period. This parlor trick allowed the city to “show” that it can accommodate its share of regionally needed housing (108,000 new homes) without relaxing any land-use restrictions. Yet during any given eight-year period, many sites that have redevelopment potential will be tied up by long-term leases, held back by owners who don’t want to sell or stay unchanged for other reasons. San Diego’s “every parcel will be developed” assumption is like a university that needs a freshman class of 1,000 students deciding to admit only 1,000 applicants, even though the university knows (or could easily learn) from past experience that only about 1 in 3 admitted students will enroll. Just as the university would need to admit 3,000 applicants in order to enroll a class of 1,000, cities need to zone for several times their housing target in order to reach it. San Diego did not.

But instead of finding San Diego to be out of compliance last September, HCD deemed the city’s status quo plan “conditionally compliant” and gave the city six months to adopt amendments about fair housing and housing sites’ likelihood of development (the college admissions analogy). Disappointingly, the city has adopted no such amendments. Instead, in February, it quietly floated some inconsequential draft revisions that leave the status quo intact.

One of us leads a coalition of nonprofits that will soon launch a first-time home-buyer grant program for lower-income people of color. Our goal is to build modest for-sale homes — accessible to households earning no more than 80 percent of San Diego’s area median income — in high-wealth, low-crime neighborhoods. We’ve received several million dollars in charitable commitments, but the single greatest barrier we face is restrictive single-family zoning that makes it impossible to construct smaller, more affordable homes in most of the city.

It is a moral and economic imperative that San Diego open up exclusionary neighborhoods and revise its zoning code to allow a lot more multifamily housing. It’s also the law. HCD and Gov. Gavin Newsom must stand tall and enforce it. If they don’t, cities across the state will infer that compliance with the state’s “strengthened” housing law just requires embellishing the status quo with cheap talk about good intentions.