December 16, 2011

Fisher v. Texas: An Important Affirmative Action Case Pending in the Supreme Court in Which the Challengers May Have Blown It

A pending case that should be of interest to all folks in higher education, and especially those of us who teach law students how to draft pleadings, is Fisher v. University of Texas. The case involves a challenge to the University of Texas’s ability to use race in admissions as part of its affirmative action program, and is now before the U.S. Supreme Court.  I have written two earlier online essays on various aspects of the case for; they are viewable here and here.

Whether the Supreme Court can and will take the case is turning out to be a complicated question.  The plaintiff (one of two, but now the only one left) applied to UT as a freshman and was denied admission.   She filed suit in federal court challenging UT's race-based admissions criteria, but at the same time enrolled in another college. In her Complaint (her request for relief), she asked for a declaration that she was entitled to have her UT application considered without regard to race, an injunction (a court order) directing UT to consider admitting her without regard to race (on the premise that she would transfer to UT), and money damages "in the form of" a refund of her admissions application fee (on the theory that her application had not been processed fairly, so that she was entitled to her money back.)

She lost in the trial court, and then twice in the Fifth Circuit Court of Appeals, first in front of a three-judge panel in January 2011, and then this past summer when she (unsuccessfully) asked the Fifth Circuit as a whole (en banc) to review her case.  She then made a request for Supreme Court review.

But here's the (or at least a) big wrinkle.  Since it took a while for her case to be resolved by the Fifth Circuit, she's no longer interested in transferring to UT (she's already a senior at her college).  So her claims for declaratory and injunctive relief are no longer live; in legal parlance they are moot.  But what about her small monetary refund claim (around $100)?

In opposing Supreme Court review last week, UT told the Court that if the Court grants review, UT will offer to refund plaintiff the $100, thereby mooting the damage claim too!  So, argues UT, it would be a waste of time for the Court to grant review, only to have to dismiss the case before deciding it.

A very interesting argument.  There is no clear Supreme Court authority that UT cites that says a mere offer to give a plaintiff what she seeks will moot a case at a late date even if the plaintiff turns the offer down.  In other words, UT cites no case that says mere "tender" by a defendant is enough to moot a damage claim late in the day.  (And it is somewhat odd that UT, if it feels this way, didn't make a "tender" earlier this year when plaintiffs sought en banc review in the Fifth Circuit; the injunctive claims were moot then too, since plaintiffs were already in their junior years and would no longer be interested in transfer.  Also, it is interesting that UT says it will tender if review is granted, rather than simply making the tender right now.)

Nonetheless, as a matter of mootness logic, the tender argument has some force.  If a defendant is willing to give the plaintiff all she currently asks for, why should a court still have the power to step in?

One possible response for plaintiff would be to say she now wants to amend the Complaint to add additional damages for not having been able to attend UT (lost earnings due to a slightly inferior education, etc.).  After all, she might say, the fact that she asked for an injunction shows that what she wanted all along was the value of the UT experience, and if she can no longer get that in-kind, money damages are the next best thing.

All that may be true, but the district court (where such decisions must be made) has not yet permitted her to amend the Complaint to add damages in light of UT's promised tender.  As the case exists before the Supreme Court (and as the Court observed in a decision two years ago, Alvarez), the Complaint is unamended and therefore arguably moot.  (Maybe Alvarez is different because there the original Complaint sought no damages, whereas here it sought small but now insufficient damages.  But should that make a difference?)

Or perhaps plaintiff can argue that the catchall "all other relief [the] [c]ourt finds appropriate and just" language at the end of her Complaint can be read to include additional damages beyond a refund.  But I don't know that such boilerplate language (that exists in virtually all complaints) can do the work.  If it could, then virtually no case could ever become moot, because some, unspecified, damages are always conceivable even if they are not requested.

We'll see what happens.  I won't be too surprised either way the Court goes; if it wants to use this case to revisit whether race can be used in higher education admissions (which it last addressed in 2003 in cased involving the University of Michigan), it might be able to find a way.  But it won't be easy.

In the meantime, I hope we can all agree that plaintiffs' Complaint should have been written so as not to limit the damages to a refund, but rather to include the value of a UT education should injunctive relief not be granted.  Instead of saying damages "in the form of" a refund, the Complaint should and could have said damages "including but not limited to" a refund . . .   Those five words should be the first ones taught in law school.

December 15, 2011

Opinion analysis: Judulang v. Holder

Cross-posted from SCOTUSBlog.

In Judulang v. Holder, the Supreme Court addressed a case in which the federal government sought to remove from the United States a lawful permanent resident who has lived here since 1974, based on a 1989 voluntary manslaughter conviction.  Former Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c), provides for a “waiver of excludability,” which allows a noncitizen to enter the country despite a criminal conviction.  For many years, the courts have required such waivers to be available to lawful permanent residents facing deportation as well as those seeking admission into the country.

In 2005, the Department of Homeland Security sought to remove Joel Judulang from the United States on the ground that he had committed an “aggravated felony” involving a “crime of violence.”  The Board of Immigration Appeals (BIA) ruled, and the Ninth Circuit affirmed, that a “crime of violence” was not “comparable” to any ground for exclusion, including the one for crimes involving moral turpitude, rendering Judulang ineligible for Section 212(c) relief.

Among other things, Judulang argued that the BIA’s interpretation of the relevant statutory provisions, which denied him eligibility for Section 212(c) relief, was arbitrary and capricious.  He further contended that it made eligibility for relief turn on arcane differences in the exclusion and deportation provisions of the Immigration and Nationality Act –  differences that stray far afield from the plain meaning of Section 212(c).  (A full preview of the issues in the case is available here, while my summary of the oral argument is available here.)  In a stinging rejection of the U.S. government’s position, the Court unanimously ruled in favor of Joel Judulang.  Reversing and remanding for a unanimous Court, Justice Elena Kagan began the opinion for the Court as follows:

This case concerns the Board of Immigration Appeals’ . . . policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under a now-repealed provision of the immigration laws. We hold that the BIA’s approach is arbitrary and capricious.

The legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it.

The Court initially outlined the statutory and administrative history behind exclusion and deportation proceedings.  The Court observed that, in Francis v. INS (2d Cir. 1976), the Second Circuit found that allowing deportable aliens who had left the country and returned to be eligible for Section 212(c) relief, but those who did not to be ineligible, violated equal protection principles.  The Court found that the BIA’s “comparable-grounds” approach, that is, “evaluat[ing] whether the ground for deportation charged in a case has a close analogue in the statute’s list of deportation grounds,” was arbitrary and capricious under the Administrative Procedure Act.

In reaching that conclusion, the Court applied ordinary administrative law principles.  Justice Kagan cited Motor Vehicle Manufacturers Association of the United States v. State Farm Mutual Automobile Insurance Co. (1983), which administrative law professors generally understand as requiring “hard look” review of agency action.  The Court held that the BIA’s ruling “flunked” minimal judicial review:

By hinging a deportable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories – a matter irrelevant to the alien’s fitness to reside in this country – the BIA has failed to exercise its discretion in a reasoned matter.  (emphasis added).

The Court specifically found that “the comparable-grounds” approach of the BIA was not reasonable.  “Rather than considering factors that might be thought germane to the deportation decision, that policy hinges § 212(c) eligibility on an irrelevant comparison between statutory provisions.”  The statutory distinction, the Court reasoned, made little sense as applied to Judulang’s case.  The Court also found arbitrary the fact that, under the BIA’s policy, the noncitizen’s eligibility for relief might turn on how the U.S. government charged the noncitizen with removal.

In so holding, the Court emphasized that:

[i]n a foundational deportation case, this Court recognized the high stakes for an alien who has long resided in the country, and reversed an agency decision that would “make his right to remain here dependent on circumstances so fortuitous and capricious.”  Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947).  We think that the policy before us is similarly flawed.  The comparable-grounds approach does not rest on any factors relevant to whether an alien (or any group of aliens) should be deported.  It instead distinguishes among aliens – decides who should be eligible for discretionary relief and who should not – solely by comparing the metes and bounds of diverse statutory categories in which an alien falls.  The result[ has] no connection to the goals of the deportation process or the rational operation of the immigration laws.

The Court proceeded to reject the textual, historical, and cost-based arguments of the U.S. government.  In conclusion, the Court emphasized that “[w]e must reverse an agency policy when we cannot discern a reason for it.  That is the trouble in this case.”

As in Judulang v. Holder, the Supreme Court has in recent years subjected the immigration decisions of the government to the same standards of judicial review as applied to other agency action.  The Court also has applied the principles of statutory interpretation to the immigration laws that it applies to other statutes.  In a number of cases, the noncitizen has won and the U.S. government’s position has been rejected.  The U.S. government, and specifically the Board of Immigration Appeals, should pay heed to the growing number of cases in recent years in which the Supreme Court has rejected its positions in removal cases.

December 5, 2011

Sweet Home Alabama? Immigration and Civil Rights in the “New” South

Cross-posted from the Stanford Law Review Online.

In the next few weeks, the Supreme Court will decide whether to review the constitutionality of Arizona’s high-profile immigration enforcement effort, known popularly as S.B. 1070. Arizona’s law is simply the tip of the iceberg. State legislatures have passed immigration enforcement laws over the last few years at breakneck speed,[1] and, generally speaking, have attempted to make life as uncomfortable as possible for undocumented immigrants. Controversy has ensued. The Arizona law received worldwide attention, international condemnations, and calls for an economic boycott of the state. Paradoxically, these state immigration laws come at a time when the Obama administration has aggressively pressed enforcement, setting all-time records for the removal of noncitizens from the United States, with nearly 400,000 people deported in fiscal year 2011.[2]

Earlier this year, the Alabama legislature entered the fray by passing a tough-as-nails immigration law.[3] The Alabama law builds on the controversial Arizona law but goes considerably further. This piece analyzes what contributed to the passage of the Alabama law and examines what might happen to it as the legal challenges wind their way through the courts.

This essay contends that the civil rights implications for immigrants and Latinos raised by the state immigration laws are in many respects similar to the civil rights issues raised by Jim Crow for African-Americans. This is true even though the current litigation centers on federal preemption doctrine, as opposed to the Equal Protection Clause of the Fourteenth Amendment. The current state laws eerily bring back memories of the “states’ rights” defense of segregation. Congress could measurably help address the civil rights concerns through some form of comprehensive immigration reform. The courts and the public should realize that, until the nation grapples with the civil rights impact of its immigration laws, it will continue to generate the sort of heated controversy that surrounds Alabama’s immigration law.

A. Background

The last ten years have been a tumultuous time in United States immigration history. The tragedy of September 11, 2001 sparked a deep concern for border security. In 2005, the House of Representatives passed the Sensenbrenner Bill,[4] a harsh enforcement-oriented measure that, among other things, would have criminalized the mere status of being undocumented. Reminiscent of the civil rights protests of the 1960s, mass marches in cities across the country followed, with crowds demanding simple justice for undocumented immigrants. As a result, the Senate never took up the Sensenbrenner bill.

Over the next few years, Congress debated more balanced approaches to immigration reform. With the election of President Barack Obama in 2008, there was optimism about the prospects for immigration reform. To many pro-immigrant observers, however, the administration has been a disappointment for ever-increasing numbers of removals and a failure to pass comprehensive immigration reform. Others criticize President Obama from a very different prospective, alleging that his administration has failed to enforce the U.S. immigration laws and failed to protect our borders.

With Congress unable to address immigration at the national level, state and local governments moved with enthusiasm to respond to—and hopefully slow down—increased migration from Mexico and other countries in Latin America. For example, Alabama, Georgia, and South Carolina—three states that have seen dramatic increases in their Hispanic population over the last twenty years—recently passed strict immigration enforcement laws.[5]

Unsettling demographic change, combined with Congress’s failure to improve an immigration system that commentators on both ends of the political spectrum vigorously condemn, led us to where we are today. Alabama is the latest state to act—and act decisively it did.

B. Alabama’s Immigration Enforcement Law

Many critics, as well as many supporters, proclaim that Alabama’s law is the toughest of all modern state immigration enforcement measures. Like Arizona’s law, the Alabama law required state and local law enforcement officials to verify the immigration status of any person with whom they have lawful contact and have a “reasonable suspicion” the person is undocumented. But it doesn’t stop there.

Section 28 of Alabama law would require school districts to check the immigration status of students and parents. (The Eleventh Circuit stayed implementation of this provision, and a few others, pending the appeal.) The stated purpose of Section 28 is to allow the collection of data necessary to challenge the Supreme Court’s holding in Plyler v. Doe.[6] Plyler invalidated a Texas law that effectively barred undocumented students from receiving a public education from kindergarten through high school. This section of the law implicates access to education; it reportedly has already “chilled” undocumented parents and students from exercising a right to primary and secondary education recognized by the Supreme Court. Accordingly, this section has provoked a request for information from the U.S. Department of Justice, which will likely follow up by initiating an investigation.

Moreover, the nation for a number of years had been debating various incarnations of the DREAM Act, which would benefit undocumented college students, and has led to a mass movement for its passage on college campuses across the country. In contrast, Alabama’s law could aptly be dubbed the anti-DREAM Act. In a section later enjoined from going into effect by the district court, the law would have barred undocumented students from the state’s public colleges and universities.

C. Legal Challenges to Recent Immigration Laws

Conflict is brewing in the lower courts over the constitutionality of the recent state immigration laws. The U.S. government challenged the Alabama immigration law, as well as its Arizona, South Carolina, and Utah counterparts. The challenges are founded on the U.S. Constitution’s Supremacy Clause, which makes federal law the “supreme law of the land,”[7] with the argument being that the state laws intrude on the federal power to regulate immigration. To this point, however, the Supreme Court has not been altogether clear on the relative distribution of federal and state power over immigration enforcement.

The Court has stated that the U.S. government has primary authority over immigration regulation. It has, however, been at best opaque regarding what room remains for the states in the field. For example, in DeCanas v. Bica, the Supreme Court stated that the “[p]ower to regulate immigration is unquestionably exclusively a federal power,” but upheld a California law sanctioning employers of undocumented immigrants.[8] Similarly, earlier this year, in Chamber of Commerce v. Whiting,[9] the Court reiterated federal supremacy over immigration regulation but upheld an Arizona law that allowed the state to strip the licenses of businesses that employ undocumented immigrants. Both decisions left vague the proper parameters of state involvement in immigration enforcement.

Eventually, one of the U.S. government’s challenges to the state immigration laws is likely to end up in the U.S. Supreme Court. That could happen very soon. A petition for certiorari filed by the state is pending in United States v. Arizona,[10] a Ninth Circuit decision striking down core immigration provisions of Arizona’s S.B. 1070, including the provision requiring local police to check the immigration statuses of suspected undocumented immigrants. If the Court grants review in the case (and we should hear in a matter of weeks), it will have the opportunity to offer guidance to the nation on the contours of state power over immigration.

In Alabama, the district court addressed two major legal challenges[11] and upheld the bulk of the Alabama immigration law, but struck down several provisions. The court, importantly, reached a different conclusion from the Ninth Circuit in upholding the immigration status checks by local police. The district court upheld the reporting requirements of local school districts but enjoined the implementation of the provision barring undocumented students from public colleges and universities. The United States is currently appealing the district court decision to the Eleventh Circuit.

In sum, there is ferment in the lower courts—and a clear conflict between the legal treatment to this point of the Arizona and Alabama laws—about the extent of the power of the states to participate in immigration enforcement. It is unclear whether the Supreme Court will weigh in now or will wait for more lower court decisions to rule on this issue. Particularly interesting is that the legal debate centers on the relative state versus federal power over immigration, while much of the public sees it in terms of the civil rights of immigrants and Latinos.

D. Civil Rights Implications of Immigration Enforcement

Federal preemption law aside, many people believe that these state immigration laws violate the civil rights of immigrants and U.S. citizens of particular national origin ancestries. For instance, the provision in both the Arizona and Alabama laws requiring police to verify the immigration status of persons about whom they have a “reasonable suspicion” of being undocumented raises serious concerns over possible racial profiling by police. Racial profiling in law enforcement is an evil that the nation has sought to remedy for many years. The obvious question is whether “foreign-looking” people, including Latinos, will bear the brunt of the immigration checks. Additionally, the school data collection requirement in the Alabama law placed in its crosshairs one of the few Supreme Court decisions, Plyler v. Doe, that recognizes that undocumented persons in the United States have civil rights.

It should be troubling that Alabama, ground zero in the civil rights movement of the 1960s, gave birth to the harshest immigration law to date. Many famous incidents in that state—from Birmingham Police Chief Bull Connor unleashing fire hoses on peaceful civil rights marchers to Governor George Wallace proclaiming “segregation now, segregation forever” in his 1963 inaugural address—remain indelibly imprinted on the national imagination. As in the days when segregationists championed “states’ rights,” we again hear objections to the intervention of the federal government as it attempts to defend immigrants’ civil rights through lawsuits challenging state immigration laws. Alabama now risks going down in history for its intolerance toward undocumented immigrants and Latinos as well as African-Americans.

Importantly, the civil rights implications of immigration enforcement exist regardless of whether the states or the federal government takes charge. The Alabama law is striking in terms of its civil rights consequences. However, that immigrants are being detained and deported at record numbers by the federal government has also provoked public outcry, as did the U.S, government’s response to September 11 and the Sensenbrenner bill. Basic civil rights concerns largely fueled the controversies. The Obama administration claims to have focused its removal efforts on “criminals,”[12] when in fact many of those removed have been petty offenders deported for traffic violations. Similarly, the administration has imposed the Secure Communities program on state and local law enforcement agencies, facilitating the removal of many immigrants arrested for only minor crimes. As a result, families have been torn apart and children who are U.S. citizens have been effectively deported with their immigrant parents.

Hopefully, Alabama’s immigration law will help the country place the civil rights implications of the nation’s immigration laws in the appropriate context. After all, approximately 11-12 million undocumented immigrants[13] live in the “shadows of American life.”[14] They labor in fields, restaurants, hotels, construction sites, garment factories, and homes, with many immigrant workers today caring for our children (just as African-Americans in Jim Crow did). The nation has left these millions of people in legal limbo, facing uncertainty about what rights, if any, they have in this country. Even such a mundane event as being pulled over for a broken taillight places their entire lives in this country in jeopardy.


So where does this leave us? In my estimation, the United States, much as it was in the 1960s, is at a civil rights crossroads. Millions of immigrants and undocumented immigrants live in the United States. Employers value their labor. Consumers gain from lower prices. The economy as a whole benefits. But legally, the nation has been at best ambivalent about how to treat immigrants, especially undocumented ones, in the eyes of the law. Most fundamentally, what rights do they possess? We as a nation must address these civil rights questions. Until we do, we can expect more turmoil in the states and, consequently, continued threats to the civil rights of immigrants and U.S. citizens of particular national origins. Ultimately, the civil rights of immigrants and Latinos are at the core of the debate over the state immigration laws.

At the same time, the rationale for enacting state laws regarding immigration enforcement crumbles if the U.S. Congress acts to reform basic U.S. immigration law in a meaningful way. Indeed, state political leaders have repeatedly emphasized that the states are acting because the Obama administration and Congress have failed to address immigration enforcement. As a co-sponsor of the Alabama immigration law stated,

[t]o me the federal government ignoring this problem is putting an unfunded mandate on the states. The federal government’s job is to enforce immigration law. . . . We are hoping through this [law] that people who do need immigrant labor . . . will put pressure on Washington now to correct the broken immigration system.[15]

Congress enacted the omnibus Immigration & Nationality Act in 1952,[16] during the Cold War, and has only amended it on a piecemeal basis since then. The last major effort at anything approaching “comprehensive” immigration reform was in 1986 with the Immigration Reform and Control Act.[17] If Congress could act to address the current issues of immigration, it could address the civil rights concerns afflicting immigrants today. Unfortunately, with a presidential election upcoming in 2012, it appears that immigration reform is dead in its tracks.

  1. See Nat’l Conference of State Legislatures, 2010 Immigration-Related Bills and Resolutions in the States (January-March 2010) at 1 (2010) (“With federal immigration reform stalled in Congress, state legislatures continue to tackle immigration issues at an unprecedented rate.”), available at
  2. See U.S. Immigration and Customs Enforcement, Removal Statistics,, (last visited November 21, 2011) (“Over the last three years, . . . ICE has conducted record levels of enforcement. . . . In FY 2011, ICE removed 396,000 individuals.”).
  3. Beason-Hammon Alabama Taxpayer and Citizen Protection Act, H.B. 65, 2011 Leg., Reg. Sess., 2011 Ala. Laws 535.
  4. See Border Protection, Antiterrorism, and Immigration Control Act, H.R. 4437, 109th Cong. (2005).
  5. See United States v. Bentley, 2011 U.S. Dist. LEXIS 112362 (N.D. Ala. Sept. 28, 2011); Georgia Latino Alliance for Human Rights v. Deal, 2011 U.S. Dist. LEXIS 69600 (N.D. Ga. June 27, 2011); Complaint, United States v. Haley, No. 2:11-CV-02779 (D.S.C., Oct. 31, 2011), available at
  6. 457 U.S. 202 (1982). The Court stated that Texas had failed to provide evidence that the cost of educating undocumented students diminished the education received by other students. Keeping information about the number of undocumented students in school would allow for better documentation of the cost of educating undocumented students in future litigation involving the education of undocumented students. For further explanation, see Kevin R. Johnson, Alabama Highlights Civil Rights Concerns in State Immigration Laws, Jurist, Nov. 12, 2011, available at
  7. U.S. Const., Art. VI, cl. 2.
  8. 424 U.S. 351, 354 (1976).
  9. 131 S. Ct. 1968 (2011).
  10. 641 F.3d 339 (9th Cir. 2011).
  11. United States v. Bentley, 2011 U.S. Dist. LEXIS 112362 (N.D. Ala. Sept. 28, 2011); Hispanic Interest Coalition of Alabama v. Bentley, Case No. 5:11-CV-2484-SLB (N.D. Ala. Sept. 28, 2011).
  12. See Robert Farley, Obama Says Deportation of Criminals Up 70 Percent Under His Administration, St. Petersburg Times (May 11, 2011, 12:07 PM),
  13. See Jeffrey S. Passel & D’Vera Cohn, Pew Hispanic Center, A Portrait of Unauthorized Immigrants in the United States, at i (Apr. 14, 2009), available at; Jeffrey S. Passel & D’Vera Cohn, Pew Hispanic Center, U.S. Unauthorized Immigration Flows are Down Sharply Since Mid-Decade, at iii (Sept. 1, 2010), available at
  14. President George W. Bush, Remarks by the President on Immigration Policy (Jan. 7, 2004), available at (stating that undocumented immigrants “who seek only to earn a living end up in the shadows of American life—fearful, often abused and exploited.”).
  15. See Deborah Barfield Berry, Congress’ Inaction on Immigration Reform Fuels States’ Actions, Montgomery Advertiser Oct. 10, 2011 (quoting House Majority Leader Micky Hammon, R-Decatur, a co-sponsor of the law).
  16. Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8 U.S.C.).
  17. Pub. L. No. 99-603, 100 Stat. 359 (1986).