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August 23, 2019

Second Circuit Gets Civil Forfeiture under the Foreign Sovereign Immunities Act Wrong

By William S. Dodge and Ingrid Wuerth

[Cross-posted from Just Security]

Are foreign states and their property immune from civil forfeiture suits brought by the U.S. government? The Second Circuit recently held that the Foreign Sovereign Immunities Act (FSIA) does not bar in rem civil forfeiture suits, but the Court’s reasoning was flawed in several respects.

The case, United States v. Assa, involves a 36-story skyscraper, 650 Fifth Avenue, in midtown Manhattan, as well as other real property and bank accounts. The case began in 2008, when the U.S. government brought a civil forfeiture action alleging that Assa Co. Ltd and Assa Corporation (together “Assa”) were owned and controlled by the government of Iran and had provided services to Iran in violation of U.S. sanctions. Based on uncontroverted evidence, the district court found that Assa served as “a front for Bank Melli [the central bank of Iran], and thus a front for the Government of Iran.” The district court granted summary judgment and ordered much of the property forfeited. After appeals by other defendants and a subsequent trial, the district court entered judgment against Assa in 2017. The property at issue in the forfeiture action has been the subject of much litigation, as summarized by the Second Circuit in In re 650 Fifth Ave. and Related Properties.

On appeal, Assa argued that if it is so controlled by Iran that it is Iran’s alter ego – as the Second Circuit held in a related case – then it is a foreign state entitled to the protections of the FSIA. If so, the district court lacked subject matter jurisdiction, a defense that may be raised at any time. The FSIA confers immunity on foreign states in two relevant provisions: 28 U.S.C. §§ 1604 and 1609. Section 1604 deals with the immunity of foreign states from suit, whereas Section 1609 deals with the immunity of a foreign state’s property from legal measures constraining that property known as attachment and execution. The Second Circuit held that neither of these sections applies to civil forfeiture suits. Because it held that Assa was not entitled to immunity at all, the court did not need to address whether any exceptions to immunity apply.

Section 1604 provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607” of the FSIA. The Second Circuit reasoned that Section 1604 does not bar in rem civil forfeiture suits because such suits are actions against the propertyof a foreign state, not against the foreign state itself. That reasoning ignores the FSIA’s treatment of other in rem proceedings. Specifically, Sections 1605(b)-(d) permit suits against foreign states to enforce maritime liens and preferred ship mortgages, subject to certain notice requirements, when a suit in rem could have been brought if the vessel had been privately owned. Under these provisions, the suit against the foreign state is technically in personam, but it follows the law and practices for in rem suits. The fundamental premise of these FSIA provisions is that maritime actions should be brought in personam, not in rem, because of the international friction that results from thein rem actions against foreign state property. The Second Circuit’s reasoning would render these provisions ineffective. If actions in rem never entitle foreign states to immunity, then plaintiffs may still use the in rem proceedings that the FSIA sought to eliminate.

The FSIA’s goal of eliminating in rem actions against foreign state vessels and cargos is underscored by the operation of the original language in Section 1605(b). As described in the legislative history, it ensured that “if the vessel or its cargo is arrested or attached, the plaintiff will lose his in personam remedy and the foreign state will be entitled to immunity—except in the case where the plaintiff was unaware that the vessel or cargo of a foreign state was involved.” Under the Second Circuit’s reasoning, by contrast, the foreign state would notbe entitled to immunity because neither Section 1604 nor Section 1609 (discussed below) would confer immunity at all in an in rem action. The language of 1605(b) has since been amended, but not in ways that change the operation of Sections 1604 and 1609.

Section 1609 provides that the “property in the United States of a foreign state shall be immune from attachment arrest and execution” subject to certain exceptions. The Court reasoned that this language“refers to quasi in rem suits meant to enforce in personam judgments against a foreign state” but not to in rem proceedings. But the text of Section 1609 draws no such distinction. Instead, it broadly confers immunity “from attachment arrest and execution,” subject only to the enumerated exceptions found in Sections 1610 and 1611. Those provisions contain no exception for civil forfeiture. Moreover, in the admiralty context, courts have held that Section 1609 confers immunity in in rem cases. See, e.g., Coastal Cargo Co. v. M/V GUSTAV SULE, 942 F. Supp. 1082, 1085 (E.D. La. 1996) (noting that “the arrest of the vessel” violated Section 1609).

It is true, as the Second Circuit noted, that one goal of the FSIA was to eliminate the attachment of property for the purpose of establishing jurisdiction. But that goal is accomplished by Section 1610(d)(2), which permits prejudgment attachment only when “the purpose of the attachment is to secure satisfaction of a judgment that has been or may ultimately be entered against the foreign state, and not to obtain jurisdiction.” Section 1609 sweeps more broadly.

Finally, interpreting Section 1609 to apply to civil forfeiture actions is probably necessary to avoid violations of customary international law. As the International Court of Justice has noted, the customary international law rules governing immunity from execution are distinct from, and generally broader than, the customary international law rules governing immunity from suit. See Jurisdictional Immunities of the State (Germ. v. It.), 2012 I.C.J. 99, para. 113 (Feb. 3). Customary international law provides immunity to state-owned corporations only in limited circumstances, but the Second Circuit held (in the related case of Kirschenbaum v. Assa Corporation) that Assa should be treated as the foreign state itself under U.S. law because Iran extensively controlled Assa’s operations. International law may not require that Assa receive the immunity to which Iran is entitled, an issue upon which we do not offer an opinion. But in any event, the Second Circuit’s reasoning covers situations in which the property subject to civil forfeiture is owned directly by a foreign government, which would almost certainly violate customary international law in at least some circumstances.

The Second Circuit erred in this case. It should seriously consider withdrawing and amending its opinion. To hold that foreign states enjoy no immunity at all from suit or execution in civil forfeiture suits is contrary to both Section 1604 and Section 1609 of the FSIA, and it may put the United States in violation of customary international law.

August 20, 2019

Disability Rights in Contemporary Immigration Debates

by Jasmine E. Harris

[Cross-posted from ImmigrationProf Blog]

We cannot fully understand the treatment of immigrant detainees and the numerous lawsuits filed against ICE and the Trump Administration without attention to disability rights. Not only do these cases underscore the intersection of immigration and disability rights broadly, but, more concretely, they offer novel and underdeveloped remedial avenues rooted in disability law. Disability statutes, like the U.S. Constitution, apply to individuals in the United States irrespective of citizenship and immigration status.

Yesterday, a coalition of leading civil rights groups filed a nationwide class action in the Central District of California to challenge the systematic denial of constitutional and statutory rights of people with disabilities in immigrant detention centers. Abdallah Fraihat et al. v. U.S. Immigration and Customs Enforcement et al., No. 5:19-cv-01546 (C.D. Cal. Aug 19, 2019) (hereinafter, Fraihat Complaint). The putative plaintiffs are fifteen individuals detained at eight different facilities in six states, representing a putative class of approximately fifty-five thousand immigrants imprisoned by ICE daily, and two nonprofit organizations, Al Otro Lado and the Inland Coalition for Immigrant Justice (ICIJ). The Fraihat Complaint challenges the federal government’s failure to ensure detained immigrants at one-hundred fifty-eight detention facilities receive appropriate medical and mental health care, its alleged use of segregation in violation of the Fifth Amendment of the U.S. Constitution, and its failure to ensure that detained immigrants with disabilities are provided legally-mandated accommodations and are not discriminated against as required by Section 504 of the Rehabilitation Act of 1973.  The Fraihat Complaint details dangerous conditions present in detention facilities that place detainees with medical and mental health disabilities in precarious situations. Examples include self-accommodating wheelchair users without assistive mobility devices being forced to rely on fellow detainees to carry them; and people denied access to medications to manage chronic illness, exacerbating current disabilities and generating new ones.

Fraihat builds on well-established substantive and procedural precedents in the prisoners’ rights context. First, the key theory of liability is that Immigration and Customs Enforcement (ICE) cannot avoid statutory and constitutional duties by contracting with third parties to manage and operate detention facilities. Although ICE directly operates only a handful of detention facilities, plaintiffs rely on familiar agency principles to hold ICE, the Department of Homeland Security, and institutional actors liable for their failure to monitor, investigate, and remedy alleged systematic violations at approximately one-hundred fifty-three facilities run by local sheriffs’ offices and private contractors.  Among those implicated, the GEO Group and CoreCivic (formerly “Corrections Corporation of America”) are two repeat defendants in prison condition cases. The fact that ICE has failed to effectively monitor and oversee the daily management of these private contractors, and to take effective measures when it learns of problems in those centers under their care and control, is not news. Consider this recent report from California Department of Justice detailing the findings from an investigation of all ten detention facilities in the state. Xavier Becerra, Cal. Att’y Gen., Immigration Detention in California, Cal. Dep’t of Justice, at 61, 82, 123 (Feb. 2019) (finding highly-restrictive prison-like conditions including required uniforms, compulsory prison-wage labor, restrictions on access to counsel and receipt of medical and mental health care).  Nor is use of class remediation novel. Fraihat relies on Ninth Circuit precedent in an analogous prisoners’ rights case for the proposition that class certification is appropriate. The Ninth Circuit in Parsons v. Ryan , 754 F.3d 657 (9th Cir. 2014)., held that prisoners could proceed as a class to challenge Arizona’s policies and practices denying access to medical care, dental care, mental health care, and punitively employing isolation.

With respect to remedies, Plaintiffs seek injunctive and declaratory relief. They want Defendants to stop using segregation as a punitive weapon, to effectively monitor federal contractors acting as their agents, and to build institutional capacity to attend to the needs of those detained.  For example, the Fraihat Complaint alleges that ICE and DHS have no system of tracking detainees’ medical and mental health needs or requests for care and accommodations.  As a result, when detainees are transferred from one facility to another, they are forced to restart the process of requesting medical care or reasonable accommodations from the beginning, leading to major delays in receipt of urgent medical attention and disability accommodations.

Plaintiffs in Fraihat face an impossible choice: either languish in detention without medical and mental health care and risk exacerbation of disabilities (including death) or abandon their immigration cases. The Trump Administration’s aggressive enforcement and use of detention has flooded an already broken system that, unfortunately (and perhaps inconceivably), continues to be years behind failing prisons in terms of compliance with disability rights laws. 

The lawsuit was filed by Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), the Southern Poverty Law Center (SPLC), and Orrick, Herrington & Sutcliffe LLP in the U.S District Court for the Central District of California. You can read the full Fraihat Complaint here.

Another recent example of disability rights at work in immigration debates is the Trump Administration’s amended “public charge” regulation, also the subject of California’s most recent lawsuit filed in federal court on August 16, 2019.  The new DHS regulation denies green cards to immigrants who use Medicaid, food stamps, housing vouchers or other forms of public assistance. While the rule may be problematic on its face, even if considered facially neutral, en arguendo, it will almost certainly have a disproportionate impact on immigrants with disabilities and their family members who are more likely to rely on Medicaid for health insurance. Before the DHS amendment, people with disabilities were considered “public charges” if they were likely to require institutional services such as long-term care. The expanded language in the rule may result in greater exclusion of people with disabilities and their families who rely on public insurance for the very supports necessary for them to access gainful employment and avoid economic dependency, such as personal home assistants or assistive technology.  Furthermore, other challenges to the Trump Administration’s immigration policies and practices, such as those pursuant to the settlement agreement in Flores v. Reno to challenge, among other policies, the Admiration’s separation of immigrant children at the U.S. border, while widely known, are filed within the immigration law cabinet without regard for the ways in which disability rights operate.  Flores, for example, requires that detained children be placed in “the least restrictive setting” in line with their age and other “special needs,” language that comes from the implementing regulations for Section 504 of the Rehabilitation Act of 1973 (requiring that services be provided in the “most integrated setting” appropriate). 

Perhaps most promising for this disability legal scholar is the recognition of disability rights as part of a broader civil rights agenda. My hope is that activists, practitioners, and scholars recognize the utility of these coalitions and consistently engage disability rights theoretical and legal principles to redress our most pressing social justice offenses of the day.

August 12, 2019

For Toxic 'Forever' Chemicals, We Need More Than a Temporary Fix

[Cross-posted from Undark]

For much of the 20th century, asbestos — dubbed a “miracle mineral” for its strength and fire resistance — was ubiquitous in buildings, homes, and consumer products. But beginning in the 1970s, as the material was shown to cause cancer and respiratory illnesses, a combination of tort liability and regulation curbed its use in the U.S. For many, that awakening has been too little, too late. Thousands of Americans continue to die each year from asbestos-related diseases.

Today, we may be facing the next asbestos: Per- and polyfluoroalkyl substances, or PFAS. Stain resistant, waterproof, and grease repellant, PFAS are widely used in nonstick cookware, food packaging, clothing, furniture, and fire retardants. Their best-known applications include Teflon, Scotchgard, and GORE-TEX. But for more than a decade now, PFAS have been linked to increased cancer risk, reduced fertility, immune system suppression, and stunted growth and learning.

Known as “forever chemicals” because they do not easily break down, PFAS have found their way into drinking water supplies and into a variety of foods, and almost all Americans have detectable levels of PFAS in their blood. Yet federal regulators have taken few measures to protect citizens from PFAS’s harms — and when they have acted, they’ve been seemingly a step behind at every turn. That must change.

To their credit, manufacturers have taken some steps to respond to concerns regarding PFAS. Industry largely phased out two of the most commonly used and extensively studied PFAS — perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) — by 2002 and 2015, respectively. But both of these substances continue to seep from contaminated sites into the drinking water supplies of millions of Americans. And, for the most part, manufacturers simply replaced PFOA and PFOS with other PFAS chemicals that have similar structures, similar characteristics, and — scientists fear — similar health risks.

In theory, several environmental statutes — including the Safe Drinking Water Act and the Toxic Substances Control Act — could be used to address at least some aspects of the problem. However, federal regulators have been slow to respond. In 2016, the U.S. Environmental Protection Agency advised drinking water system operators to take action whenever combined PFOA and PFOS concentrations exceed 70 parts per trillion. Operators were advised to conduct further sampling, inform consumers of the elevated concentrations and potential dangers, and limit the public’s exposure to tainted water supplies. But the agency’s advisories govern only those two chemicals and are not enforceable. In February 2019, the EPA announced that, by the end of the year, it will start the process for developing enforceable standards for PFOA and PFOS levels in drinking water, though it’s unclear when the work will be completed.

As the EPA drags its feet, some states have begun to develop their own regulatory standards — and to file lawsuits against industry and the U.S. Department of Defense, which owns or operates hundreds of sites contaminated by PFAS-containing firefighting foam. In Congress, bipartisan support for legislative action is building. More than 30 PFAS-related bills have been introduced on the Hill, including proposals requiring the Defense Department to address water contamination at military bases and EPA to establish enforceable standards for PFOA and PFOS in drinking water within two years.

Although these developments are encouraging, PFAS contamination is a multifaceted problem that calls for a multifaceted response. So, as Congress pursues legislative solutions, there are several things it should keep in mind.

First, because PFAS comprises thousands of substances, a chemical-by-chemical approach to regulation is likely to fail. Hundreds of scientists have concluded that the structural similarities between PFOS and PFOA — for which the evidence of toxicity is clear cut — and other PFAS warrant caution in the use of all PFAS. Regulation of the various PFAS chemicals should not require definitive evidence of each individual substance’s toxicity.

Second, Congress should address not only the threat of present-day exposure to PFAS, but also harms from past exposure and risks of future exposure. It will be essential to identify and redress harms to those who have already been exposed to PFAS, to clean up contaminated sites and secure safe water supplies, and to prevent future contamination. In the cleanup process, establishing drinking water standards is only a first step. Water suppliers will likely require financial and technical assistance to achieve those standards — and basic fairness suggests that the companies responsible for the contamination should bear the costs. To prevent future contamination, Congress should limit PFAS use and promote non-PFAS alternatives.

Third, although drinking water contamination is the most pressing and significant pathway for PFAS exposure, people can also be exposed to PFAS through their work environments, contaminated foods, foods wrapped in PFAS-treated packaging, and various consumer products. It will be important to assess the risks associated with these alternative pathways and to develop strategies to deal with them.

The broad bipartisan support for action on PFAS reflects the urgency and importance of the substances’ known health hazards. Congress must act quickly — and wisely — to make sure PFAS doesn’t become the next asbestos.

July 15, 2019

Student loan borrowers are defaulting yearly -- how can we fix it?

[Cross-posted from The Hill]

Over a million borrowers defaulted on student loans last year. Many of those carrying this debt file for bankruptcy. In fact, an estimated one-third of bankruptcies involve student loans. But what many people might not know is that in bankruptcy, student loan debt is rarely forgiven. One researcher found that of over 230,000 student-loan borrowers who filed bankruptcy in 2007, under 450 — less than 0.2 percent — even tried to discharge their education loans. 

Presidential candidate Beto O’Rourke just proposed a large-scale debt-forgiveness program to help address the problem. Fellow candidates Sens. Elizabeth Warren (D-Mass.) and Bernie Sanders (I-Vt.) already offer such programs. But such relief will come, if at all, after the presidential election. In the meantime, bankruptcy should be a more readily available option for truly overwhelmed borrowers.

Congress is considering bills proposed by Warren and Sen. Richard Durbin (D-Ill.) and by Reps. John Katko (R-N.Y.) and Jerrold Nadler (D-N.Y.) that would make it easier for borrowers to escape, or discharge, student loans in bankruptcy. Recently, the House Judiciary Committee held hearings on student loan bankruptcy.

The bills would eliminate a requirement that applies to student loans and not to any other type of debt: To get a discharge, the student-loan borrower must undertake the daunting task of suing the creditor within the bankruptcy and proving that repayment would cause the borrower “undue hardship.” 

By severely restricting bankruptcy relief, the undue-hardship requirement undercuts the basic purposes of the student loan programs: equal access to higher education, benefiting society through educating the population, and helping students.

Excessive debt can undermine access to education. Research has shown that high undergraduate borrowing is associated with lower graduation rates and with not pursuing further education

Bankruptcy can help tear down this barrier. It is a fundamental premise of American bankruptcy law that bankruptcy discharge is a powerful remedy for discouragement caused by unmanageable debt, and that notion applies fully to education debt. 

The undue-hardship requirement also can interfere with education’s benefits to society. In a recent Florida case, the debtor worked at a Salvation Army shelter as a counselor to battered and abused women. According to the record, she was “at the top of her profession” and “unlikely to find other work in her field that would pay more.” 

The court refused to grant relief, no matter how low her standard of living. According to the court, a debtor cannot claim undue hardship if she “choose[s]” to work only in the field in which she was trained. The court effectively told the debtor to abandon her successful, if lower-paying, career to try to make more money to pay loans. It interfered not just with her own career choice, but with society’s ability to benefit from her education.

Finally, the undue-hardship requirement transforms an intended benefit into a high-stakes gamble. Congress intended borrowers to repay out of increased earnings, not to suffer because of failed educational investments

Of course, student loans can help borrowers by making education possible. But loans can also harm students. Researchers have found links between education debt and lower income, net worth, and probability of owning a house or car, as well as self-reported mental health, life satisfaction, and well-being

The harms can outweigh the benefits. For example, one bankrupt debtor borrowed over $50,000 for an information management master’s degree, could not find a job in the field, and worked as a telemarketer. The gamble did not pay off for him. 

Congress should enact legislation, such as that under consideration, to alleviate or eliminate the “undue hardship” requirement that obstructs bankruptcy relief for overwhelmed student borrowers. But even if Congress does not act, other actors should step in to limit the harm caused by the undue-hardship requirement.

The Department of Education makes the rules governing student loans issued under federal programs — the large majority of student loans outstanding. The department is considering changing those rules. It should, as others have suggested, adopt a policy of agreeing to discharge under certain defined circumstances that indicate severe hardship and inability to pay, such as when the debtor is disabled and has an income under 150 percent of the poverty level. By sparing such struggling borrowers the hassle of litigating a case in bankruptcy court and by providing clear rules, such a decision could help thousands each year. 

The courts have broad latitude to interpret “undue hardship.” They should move toward granting discharge more consistently and freely. For example, they should stop insisting that debtors abandon callings at which they have achieved success so that they can repay debts. Further, courts should allow discharge when the borrower cannot repay the loans within a reasonable time, such as 10 years, while maintaining a lifestyle well above the poverty level.

Thus, there are several ways to mitigate the undue-hardship requirement’s interference with achieving the student-loan programs’ goals. With over a million borrowers defaulting each year, the need for action — one way or another — is urgent.

 

July 15, 2019

Student loan borrowers are defaulting yearly -- how can we fix it?

[Cross-posted from The Hill]

Over a million borrowers defaulted on student loans last year. Many of those carrying this debt file for bankruptcy. In fact, an estimated one-third of bankruptcies involve student loans. But what many people might not know is that in bankruptcy, student loan debt is rarely forgiven. One researcher found that of over 230,000 student-loan borrowers who filed bankruptcy in 2007, under 450 — less than 0.2 percent — even tried to discharge their education loans. 

Presidential candidate Beto O’Rourke just proposed a large-scale debt-forgiveness program to help address the problem. Fellow candidates Sens. Elizabeth Warren (D-Mass.) and Bernie Sanders (I-Vt.) already offer such programs. But such relief will come, if at all, after the presidential election. In the meantime, bankruptcy should be a more readily available option for truly overwhelmed borrowers.

Congress is considering bills proposed by Warren and Sen. Richard Durbin (D-Ill.) and by Reps. John Katko (R-N.Y.) and Jerrold Nadler (D-N.Y.) that would make it easier for borrowers to escape, or discharge, student loans in bankruptcy. Recently, the House Judiciary Committee held hearings on student loan bankruptcy.

The bills would eliminate a requirement that applies to student loans and not to any other type of debt: To get a discharge, the student-loan borrower must undertake the daunting task of suing the creditor within the bankruptcy and proving that repayment would cause the borrower “undue hardship.” 

By severely restricting bankruptcy relief, the undue-hardship requirement undercuts the basic purposes of the student loan programs: equal access to higher education, benefiting society through educating the population, and helping students.

Excessive debt can undermine access to education. Research has shown that high undergraduate borrowing is associated with lower graduation rates and with not pursuing further education

Bankruptcy can help tear down this barrier. It is a fundamental premise of American bankruptcy law that bankruptcy discharge is a powerful remedy for discouragement caused by unmanageable debt, and that notion applies fully to education debt. 

The undue-hardship requirement also can interfere with education’s benefits to society. In a recent Florida case, the debtor worked at a Salvation Army shelter as a counselor to battered and abused women. According to the record, she was “at the top of her profession” and “unlikely to find other work in her field that would pay more.” 

The court refused to grant relief, no matter how low her standard of living. According to the court, a debtor cannot claim undue hardship if she “choose[s]” to work only in the field in which she was trained. The court effectively told the debtor to abandon her successful, if lower-paying, career to try to make more money to pay loans. It interfered not just with her own career choice, but with society’s ability to benefit from her education.

Finally, the undue-hardship requirement transforms an intended benefit into a high-stakes gamble. Congress intended borrowers to repay out of increased earnings, not to suffer because of failed educational investments

Of course, student loans can help borrowers by making education possible. But loans can also harm students. Researchers have found links between education debt and lower income, net worth, and probability of owning a house or car, as well as self-reported mental health, life satisfaction, and well-being

The harms can outweigh the benefits. For example, one bankrupt debtor borrowed over $50,000 for an information management master’s degree, could not find a job in the field, and worked as a telemarketer. The gamble did not pay off for him. 

Congress should enact legislation, such as that under consideration, to alleviate or eliminate the “undue hardship” requirement that obstructs bankruptcy relief for overwhelmed student borrowers. But even if Congress does not act, other actors should step in to limit the harm caused by the undue-hardship requirement.

The Department of Education makes the rules governing student loans issued under federal programs — the large majority of student loans outstanding. The department is considering changing those rules. It should, as others have suggested, adopt a policy of agreeing to discharge under certain defined circumstances that indicate severe hardship and inability to pay, such as when the debtor is disabled and has an income under 150 percent of the poverty level. By sparing such struggling borrowers the hassle of litigating a case in bankruptcy court and by providing clear rules, such a decision could help thousands each year. 

The courts have broad latitude to interpret “undue hardship.” They should move toward granting discharge more consistently and freely. For example, they should stop insisting that debtors abandon callings at which they have achieved success so that they can repay debts. Further, courts should allow discharge when the borrower cannot repay the loans within a reasonable time, such as 10 years, while maintaining a lifestyle well above the poverty level.

Thus, there are several ways to mitigate the undue-hardship requirement’s interference with achieving the student-loan programs’ goals. With over a million borrowers defaulting each year, the need for action — one way or another — is urgent.

June 28, 2019

Why the Supreme Court asked for an explanation of the 2020 Census citizenship question

[Cross-posted from The Conversation]

Immediately before the Supreme Court’s summer recess each year, it releases decisions in some of its most challenging and significant cases.

This year was no different.

On June 27, the last day of the term, the Supreme Court decided Department of Commerce v. New York, a case exploring legal issues surrounding the addition of the question, “Is this person a citizen of the United States?,” on the 2020 census.

The decision is of great practical importance, as the final numbers generated by the census will affect representation in Congress, allocation of federal dollars and much more. The political implications of the citizenship question made the case politically volatile and controversial.

In an opinion by Chief Justice Roberts, the court chose not to accept what may well be the Trump administration’s pretext for the citizenship question to mask partisan political and discriminatory motives.

As a scholar of immigration law and civil rights, I was not surprised by the outcome. The court decided the case in a way that will help maintain its legitimacy in the future.

CENSUS INFLUENCE

Because the census is conducted only once every 10 years, it can affect close to a generation of policies.

By influencing electoral districting, the census can affect political representation in Congress, as well as the relative numbers in Congress from the two major political parties. That, in turn, affects how federal money is spent and which groups and programs are preferred or disfavored. Put simply, the census has dramatic political impacts on the entire nation.

In 2018, Wilbur Ross, the U.S. Secretary of Commerce under President Trump, announced that the Bureau of the Census intended to add a question about U.S. citizenship in the form sent to all households in the 2020 census. The proposed question would in fact be a readdition, because some form of that question had been in census questionnaires in the past.

The Trump administration said that the citizenship question would improve enforcement of the Voting Rights Act, which protects the voting rights of citizens. However, opponents claimed that the question was motivated by partisan political considerations, including voter suppression and an effort to systematically undercount immigrants, particularly Hispanics.

In an ideal world, a count of noncitizens could be beneficial to policymakers and researchers.

For example, a city could use the number to establish a need for resources to facilitate naturalization and other immigrant services. States with large immigrant populations would know about how much federal funding was needed to cover immigrants’ costs incurred in public education and English as a second language courses.

However, civil rights groups and immigrant rights activists were concerned that, especially with President Trump at the helm, a citizenship question would discourage immigrants from participating in the census, for fear that answering the question truthfully might lead to their removal from the country by the very administration collecting the data.

If that turned out to be true, immigrants might well be chilled from participating in the census. The result would be an inaccurate – and low – count of immigrants.

THE DECISION

The court held that the proposed citizenship question does not violate the Constitution, which vests broad discretion in the U.S. government in deciding how to conduct the census.

They also ruled that Ross’ decision did not violate the Administrative Procedure Act. This act requires that certain procedures be followed in administrative decisions and that agency officials offer reasoned and rational explanations for their decisions.

However, Roberts, in a part of the opinion joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, ruled that the Department of Commerce needed to provide further explanation for adding the question. The court said that the Department of Commerce’s claim that the citizenship question was solely designed to help Voting Right Act enforcement seemed “contrived.”

The chief justice further wrote that, “Our review is deferential, but we are ‘not required to exhibit a naivete from which ordinary citizens are free,’” quoting legendary Judge Henry Friendly.

Some court observers were surprised by the outcome.

After oral argument in April, some had predicted that five justices favored the citizenship question and that the court would allow the question for the 2020 census.

However, in May, new evidence came to light that that the citizenship question was adopted for reasons other than enforcing the Voting Rights Act.

Emails show that, for months, Wilbur Ross had inquired about adding a citizenship question, asking around to see if it was a popular idea. Commerce Department officials had tried to get other agencies involved to “clear certain legal thresholds” to ask the question. As almost an afterthought, Ross and the Department of Commerce asked the Department of Justice to send them a letter providing the Voting Rights Act rationale for the citizenship question.

None of this evidence tends to support the conclusion that enforcing the Voting Rights Act was the true reason that the Department of Commerce sought to add a citizenship question to Census 2020.

THE SUPREME COURT'S LEGITIMACY

As former New York Times Supreme Court reporter and Yale lecturer Linda Greenhouse has written, Roberts is concerned with the perceived legitimacy of the court.

Chief Justice Roberts has gone so far as to criticize President Trump for criticizing an “Obama judge.” In a November 2018 statement virtually unheard of from a chief justice, Roberts said “We do not have Obama judges or Trump judges, Bush judges or Clinton judges … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” The chief was defending the independence – and in effect the very legitimacy – of the federal courts, which he understood to be under attack by the president.

Given the weak justification for the citizenship question, rubber-stamping the citizenship question without further inquiry could well have been a stain on the court’s legitimacy.

Just days before the Supreme Court handed down the decision in the census case, an appellate court had opened the door for further investigation into whether anti-Hispanic animus played a role in the secretary’s decision to include the citizenship question.

This is a serious charge. To allow the citizenship question to be added to the census, in light of uninvestigated claims of anti-Hispanic animus and in the face of unquestionable anti-Hispanic impacts, could undermine the public trust in – and the very legitimacy of – the Supreme Court.

It has historically been challenging to facilitate immigrant participation in the census. In immigrant communities, fear of government has increased during the Trump administration. Indeed, just in the last few weeks, Trump threatened an imminent mass removal campaign, only to temporarily halt the effort at the eleventh hour.

The court might well have learned a lesson from its decision to uphold the travel ban last year, also on the last day of the term. In Trump v. Hawaii, a 5-4 majority in an opinion by Chief Justice Roberts overlooked the evidence of the Trump administration’s anti-Muslim intent in adopting the ban and upheld it based on national security grounds. The decision was widely criticized by scholars and civil rights and immigrant advocates as authorizing discrimination.

Time will tell how the Trump administration proceeds from here. However, it would appear that a rational – not a “contrived” – explanation would be required.

THE LEGAL RATIONALE

The court’s decision, for the most part, does not state explicitly – which would be unprecedented – that it sought to protect its legitimacy. And it avoids going too far in criticizing the decision to use the citizenship question.

Indeed, the court found that the decision to include the question was not “arbitrary and capricious” in violation of the law. It simply said that the Department of Commerce’s explanation was not convincing and a rational – not a “contrived” – explanation would be required.

It is telling that Roberts, who is keenly concerned about the court’s legitimacy, sided with the liberal justices in order to send the case back to the agency.

Roberts, who famously said during his confirmation hearings that a judge’s job is to call “balls and strikes,” resists the notion that the Supreme Court is a political institution – and did so, I believe, with this decision.

 

June 28, 2019

The Flores settlement: A 1985 case that sets the rules for how government can treat migrant children

[Cross-posted from the Chicago Tribune, Houston Chronicle and The Conversation]

What are the basic rules that determine how immigrant children are treated in U.S. immigration detention?

The Trump administration’s detention of migrant children in poor conditions along the U.S./Mexico border has repeatedly raised this question. The answer is a decades-old court case known as the Flores settlement. The settlement establishes the rules that the U.S. government must follow when it detains migrant children in enforcing immigration laws.

Litigation over enforcement of the Flores settlement has exploded in recent weeks. That includes a court case brought by immigrants’ rights and civil liberties groups in response to what they called the “imminent threat to the health and welfare” of migrant children in detention. U.S. border officials should have “promptly released children to their relatives and provided safe and sanitary detention conditions for all children in its custody,” said an attorney representing the groups that brought the action.

Similarly, last summer, based on the Flores settlement, a federal court barred immigration authorities from giving children psychotropic drugs without consent of parents or legal guardians.

Conditions apparently have not improved in detention centers across the country. The three children who died while in custody since January and public outcry over the conditions of detention for the youngest migrants led to the latest court fight.

During recent litigation seeking to enforce the Flores settlement, the Department of Justice made headlines as it defended the detention conditions of migrant children. The judges of the court of appeals were incredulous at the government’s claim that soap and a toothbrush were not necessarily required for detained migrant children.

Last year, the Trump administration requested to amend the settlement to allow it to indefinitely detain migrant children. The courts consistently have denied these requests and will continue to monitor the detention of migrant children, as the Flores settlement provides for them to do.

A regulation proposed by the Trump administration in 2018 would also remove the requirements of the Flores settlement, but it has not gone into effect.

So what was the Flores case about?

Case took years

In the 1980s, the Reagan administration aggressively used detention of Central Americans as a device to deter migration from that region, where violent civil wars had caused tens of thousands to flee.

Central Americans arrested at the U.S.-Mexico border were held in custody – including many who sought asylum in the U.S. because they feared persecution if returned home.

Immigrant rights groups filed a series of lawsuits challenging various aspects of the detention policies, including denying migrants access to counsel, taking steps to encourage them to “consent” to deportation and detaining them in isolated locations far from families and attorneys.

One suit was filed by the American Civil Liberties Union in 1985 on behalf of Jenny Lisette Flores, a 15-year-old from El Salvador. She had fled violence in her home country to live with an aunt who was in the U.S.

But Flores was detained by federal authorities at the U.S. border for not having proper documentation permitting her to stay in the U.S.

The American Civil Liberties Union charged that holding Flores indefinitely violated the U.S. Constitution and the immigration laws. The Flores case slowly made its way to the U.S. Supreme Court.

In its 1993 ruling in the case, the court held that a regulation allowing the government to release a migrant child to a close family member or legal guardian in the United States was legal.

But the primary legacy of the case was the subsequent settlement, to which both the Clinton administration and the plaintiffs agreed in 1997.

The Flores settlement established basic standards for the treatment of unaccompanied minors who were in the custody of federal authorities for violating immigration laws.

It requires the federal government to place children with a close relative or family friend “without unnecessary delay,” rather than detaining them; and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Generally speaking, this has meant migrant children can be kept in federal immigrant detention for only 20 days.

The Flores settlement is a landmark agreement in no small part because Central Americans continue to flee violence in their homelands and the U.S. government has responded with mass detention of immigrant children.

Although the settlement was agreeable to the Clinton administration, the Trump administration strongly desires to detain families, including children, for periods longer than permitted by the Flores settlement.

This is an updated version of an article originally published on Aug. 2, 2018.

June 24, 2019

Book recommendation: Ghosts of Gold Mountain

Gold mountain

[Cross-posted from ImmigrationProf]

 

I strongly recommend the book Ghosts of Gold Mountain: The Epic Story of the Chinese Who Built the Transcontinental Railroad by Gordon H. Chang.  It previously was previewed on the ImmigrationProf blog.  I just finished this very readable book and found it to offer an incredibly important account of the Chinese immigrants who literally built the western end of the transcontinental railroad and forever changed the United States, revolutionizing commerce in the country and literally transforming the nation.

Chang offers a human account of the role of Chinese immigrants, who often have been rendered invisible in the history books, in the construction of the U.S. transcontinental railroad, which was completed in 1869.  He refers to the workers as "Railroad Chinese," most who hailed from southern China and performed the amazing feat of completing the transcontinental railroad through the incredibly rocky and steep Sierra Nevada mountains.  Ghosts of Gold Mountain tells us how the workers (almost all men but with a small group of women who, according to Chang, mostly worked in prostitution) lived (including what they ate and drank) in the United States (far from family and friends in China), how they were skilled railroad builders, resisted unfair treatment by their employers, and ultimately how the nation discarded them after their labor was no longer needed.  California railroad barons Leland Stanford and Charles and Edwin Crocker feature prominently in the story of the Railroad Chinese and the construction of the transcontinental railroad.  Although many initially opposed the use of Chinese labor in railroad construction, the workers proved themselves to be diligent, responsible, and dependable. 

Despite their daring achievements, the Chinese workers in the late 1800s were subject to discrimination, the Chinese exclusion laws designed to end immigration from China, and political movements led by white workers and others for their removal.  In my opinion, an understanding of how the nation treated Chinese immigrants is necessary to an understanding of the exclusion laws, which continue to influence -- through the "plenary power doctrine" and more -- immigration law and policy.

Like any good book, Ghosts of Gold Mountain got me thinking.  I did a little research after reading about the Chinese workers who settled in Truckee, California, a small town near Donner Lake, known for the ill-fated Donner Party. Not far from Truckee, the Railroad Chinese constructed a series of tunnels through granite at high altitudes, including during the harshest of winters.  Many Railroad Chinese died.  Today, Truckee, where I have vacationed for years, has almost no evidence of the Chinese settlement that was so prominent from 1840-1886.  Chinese people were basically forced to leave Truckee.  The efforts culminated in 1886; discrimination, boycotts of their businesses and labor, and violence, which later became known as the "Truckee method," basically forced the Chinese to leave the city.  In one spectacular case, a group of white defendants were acquitted of the killing of a Chinese man in 1876 in a raid on a house with Chinese workers known as the "Trout Creek Outrage."  During the same general time period, a secret white supremacist society known as the "Caucasian League" had hundreds of members in Truckee and thousands throughout the state.  At various times in the late 1800s, suspicious fires destroyed parts of the "Chinatown" section of Truckee.

In 1886, California held the Anti-Chinese Nonpartisan Convention in San Jose, which praised the intimidation fires, boycott, and exclusion —the Truckee Method — and adopted it across the state.  The Truckee method was successful because it was said to be “lawful and nonviolent.”

Support -- much of it couched as support for white workers -- for the federal Chinese exclusion laws came from California.   This historical backdrop thus influenced the Chinese exclusion laws.

 

June 18, 2019

By Playing Politics with DACA, Trump is Toying With Innocent Lives

[Cross-posted from the Globe Post]

Announced in 2012, Deferred Action for Childhood Arrivals (DACA) is one of the signature policies of the Barack Obama administration. It provided temporary relief, including work authorization, for noncitizens brought to the United States as children. Implemented within months of the 2012 election, the policy followed several years of record-setting numbers of removals and the failure of Congress to pass immigration reform.

Making immigration enforcement a cornerstone of his presidential campaign like no other in modern U.S. history, Donald J. Trump promised to dismantle DACA. That policy, however, for the most part, remains in place. Although President Trump blames the courts for barring his efforts to rescind DACA, the true reason is simpler and more sinister: the Trump administration continues to benefit from playing politics with immigrant lives.

The Supreme Court may well soon decide whether to review the lower court rulings halting DACA’s rescission. But even if the Court takes up the cases, it could still take a year or more for a final resolution. Lives will hang in the balance.

Trump’s Aggressive Immigration Measures

Exemplified by the advocacy for a wall along the U.S./Mexico border and the Muslim ban, Trump’s administration has put into place numerous aggressive immigration enforcement measures. Such measures also include ending Temporary Protected Status for Salvadorans, Haitians, Hondurans, Nicaraguans, and others, mass detention of Central Americans seeking asylum, and family separation.

The president also has sought to restrict legal immigration, specifically denigrating lawful family-based immigration as “chain migration” and calling for a new immigration system favoring skilled, educated, and English-speaking immigrants.

President Trump unquestionably sees it as politically beneficial to inject tough immigration talk into the news and, consequently, he often does so. DACA is just another political pawn in the larger immigration game.

DACA and Dreamers

Within days of taking office, President Trump acted on immigration, issuing the first executive order known as the “Muslim ban” and orders on border security and interior immigration enforcement.

Action on DACA took longer, however. Politics, pure and simple, explain the delay. While DACA’s death was rumored for months, a bipartisan group of members of Congress advocated maintaining the policy, which benefited a relatively popular group of immigrants who were in this country without authorization due to no fault of their own.

The political allure of the Dreamers can be seen in the many versions of an immigration bill known as the DREAM Act, which had the support of prominent Republicans as well as Democrats, over more than a decade.

Finally, in September 2017, then-Attorney General Jeff Sessions – not President Trump – announced the rescission of DACA. Yet DACA remains. Courts halted the rescission, questioning the reasoning offered by the Trump administration for rescinding the policy.

Courts Halt DACA Rescission

The U.S. Court of Appeals for the Ninth Circuit found that, because the administration’s claim that DACA was not lawful and simply wrong, the rescission was likely to be found “arbitrary and capricious” and in violation of the Administrative Procedure Act. It allowed an injunction barring DACA’s rescission to remain in place. A couple of weeks ago, the Fourth Circuit found that the decision to rescind DACA “was not adequately explained and thus was arbitrary and capricious.”

The Trump administration could quickly remedy what the courts said was missing: a rational explanation for rescinding the policy. The administration, for example, could say that Congress is the most appropriate branch to address the legal status of the DACA recipients. Importantly, no court has held that DACA is required by the immigration laws or that there is some other legal right to DACA relief. Rather, the courts have held that the Trump administration has not adequately explained its reasoning for dismantling DACA, an easily cured defect.

The Trump administration has not offered an adequate explanation because of politics. The young noncitizens who benefited from DACA are politically active and popular. There is little political upside to the administration to push to end DACA, which has some Republican support. The political benefits of blaming “liberal” courts for keeping DACA alive outweigh any benefits of actually abolishing the policy. In this vein, Trump frequently blames the courts and Congress for sidetracking his efforts to build the border wall, punish “sanctuary cities,” and the like.

DACA recipients and their allies have been active. Immigrant advocates have allowed their voices to be heard. Legal challenges to the DACA rescission, and many other Trump policies, have been largely successful. In early June, the U.S. House of Representatives passed the DREAM and Promise Act of 2019, which would provide relief to young undocumented immigrants, DACA recipients, and holders of Temporary Protected Status.

Human Impact

Immigration is a powerful political issue for President Trump. Although it energizes his base, the administration’s tough immigration stands have human impacts. The efforts to rescind DACA have frightened hundreds of thousands of DACA recipients who see their ability to remain in the United States – the only nation that many of them have ever truly known – placed in question.

Although the courts have required current DACA recipients to renew their relief, some recipients declined to renew, fearing possible removal if they sought any kind of relief from the U.S. government. In addition, the court injunctions did not require the administration to accept any new DACA applications. Thus, even though DACA has not been rescinded, it has been limited, and young immigrants have been harmed.

DACA unquestionably is an important issue. Sadly, the administration continues to play politics with peoples’ lives. Immigrants live and work in – and unquestionably are part of – our communities. Harsh rhetoric questioning their humanity, claiming that the nation is being invaded, and more will offer political benefits to the president but injure real people.

What the United States truly needs is for Congress to overhaul the immigration laws. The nation needs a 21st-century system for legal immigration. It needs a path to permanent legal status for undocumented immigrants, DACA recipients, and Temporary Protected Status holders. Until Congress acts, the nation will continue to see human casualties in the war on immigrants.

 

June 18, 2019

Want to See My Genes? Get a Warrant

[Cross-posted from the New York Times]

Someone broke into a church in Centerville, Utah, last November and attacked the organist who was practicing there. In March, after a conventional investigation came up empty, a police detective turned to forensic consultants at Parabon NanoLabs. Using the publicly accessible website GEDmatch, the consultants found a likely distant genetic relative of the suspect, whose blood sample had been found near the church’s broken window.

Someone related to the person on GEDmatch did indeed live in Centerville: a 17-year-old high school student. Alerted by the police, a school resource officer watched the student during lunch at the school cafeteria and collected the milk carton and juice box he’d thrown in the garbage. The DNA on the trash was a match for the crime scene evidence. This appears to be the first time that this technique was used for an assault investigation.

The technique is known as genetic genealogy. It isn’t simply a matter of finding an identical genetic match between someone in a database and evidence from a crime scene. Instead, a DNA profile may offer an initial clue — that a distant cousin is related to a suspect, for instance — and then an examination of birth records, family trees and newspaper clips can identify a small number of people for further investigation.

The identification of Joseph DeAngelo in the Golden State Killer case also relied on genetic genealogy. He was charged with 26 counts of murder and kidnapping after a genealogist helped investigators in California identify a third cousin of Mr. DeAngelo’s through GEDmatch and other genealogical records.

While there may be broad public support for a technique that solved serial murders, just because technology allows for a new type of investigation doesn’t mean the government should be allowed to use it in all cases.

Genetic genealogy requires lots of DNA samples and an easy way to compare them. Americans have created millions of genetic profiles already. A 2018 study published in Science predicted that 90 percent of Americans of European descent will be identifiable from their DNA within a year or two, even if they have not used a consumer DNA service. As for easy access, GEDmatch’s website provides exactly this opportunity. Consumers can take profiles generated from other commercial genetic testing services, upload them free and compare them to other profiles. So can the police.

We should be glad whenever a cold case involving a serious crimes like rape or murder can be solved. But the use of genetic genealogy in the Centerville assault case raises with new urgency fundamental questions about this technique.

First, there is now no downward limit on what crimes the police might investigate through genetic genealogy. If the police felt free to use it in an assault case, why not shoplifting, trespassing or littering?

Second, there’s the issue of meaningful consent. You may decide that the police should use your DNA profile without qualification and may even post your information online with that purpose in mind. But your DNA is also shared in part with your relatives. When you consent to genetic sleuthing, you are also exposing your siblings, parents, cousins, relatives you’ve never met and even future generations of your family. Legitimate consent to the government’s use of an entire family tree should involve more than just a single person clicking “yes” to a website’s terms and conditions.

Third, there’s the question of why the limits on Americans’ genetic privacy are being fashioned by private entities. The Centerville police used GEDmatch because the site owners allowed an exception to their own rules, which had permitted law enforcement access only for murder and sexual assault investigations. After user complaints, GEDmatch expanded the list of crimes that the police may investigate on its site to include assault. It also changed default options for users so that the police may not gain access to their profiles unless users affirmatively opt-in. But if your relative elects to do so, there’s no way for you to opt out of that particular decision. And what’s to stop GEDmatch from changing its policies again?

Finally, the police usually confirm leads by collecting discarded DNA samples from a suspect. How comfortable should we be that a school resource officer hung around a high school cafeteria waiting to collect a teenager’s “abandoned” DNA?

All of these issues point to one problem: Police use of genetic genealogy is virtually unregulated. Law enforcement agencies and cooperating genetic genealogy websites are operating in a world of few limits. There are not only few rules about which crimes to investigate, but also unclear remedies in the case of mistakes, the discovery of embarrassing or intrusive information, or misuse of the information.

If these concerns sounds similar to other technology and privacy problems we’re facing, they should. Our genetic and digital identities raise similar questions of autonomy, civil liberties, and intrusion by public and private entities.

Without legal limits, genetic genealogy will become a more popular tool for the police. Rather than wait for the courts to deal with difficult and novel issues about genetic surveillance and privacy, state legislatures and attorneys general should step in and articulate guidelines on how far their law enforcement agencies should go. Congress and the Federal Trade Commission should take further steps to protect the privacy and security of consumer genetic data.

If the police are to be given unlimited access to the genetic information of your entire family tree, they should have it at the end of a public debate, not by default.