November 25, 2015

On-Line Symposium on Texas v. United States -- Stephanie Medina and Holly Cooper: Rolling the DAPA and DACA Stone Uphill to the SCOTUS

Cross-posted from Immigration Prof Blog.

Here is the latest installment in ImmigrationProf Blog's On-Line symposium on Texas v. United States.

Rolling the DAPA and DACA Stone Uphill to the SCOTUS by Stephanie Medina, UC Davis Law Student, and Professor Holly Cooper

Last Friday, the U.S. Department of Justice filed a petition for a writ of certiorari to the Supreme Court of the United States (SCOTUS) asking the Court whether states have standing to try and block the implementation of President Obama's 2014 of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expanded version of Deferred Action for Childhood Arrivals (DACA). While the SCOTUS decides whether to hear the case, our country's deportation apparatus will continue to needlessly detain and deport thousands of undocumented immigrants who otherwise could have qualified for benefits under the new policy.

The UC Davis Immigration Law Clinic students, as part of monthly "Know Your Rights" trainings at the immigration detention centers, have witnessed the impact firsthand. Many of the detainees who attended the presentations were fathers of U.S. citizen children fighting to stay in the U.S. to care for their U.S. citizen children. For some fathers, this was their second or third time trying to reunite with their children. Oftentimes, the emotional cost of deportation is too much to bear. The missed quinceañeras, the missed graduations, and the longing to be with one's child overtake the deportee and they try return to the U.S. to reunify with their children. The deported mothers and fathers will try and return to their children in the U.S. again and again-despite the risks of the journey.

In symphony with the suffering of their parents, the U.S. citizen children are taking to the streets protesting. Their collective voices hold the U.S. accountable to the human and familial cost of deportation. Emboldened by the protests on the outside, detainees are commencing hunger strikes throughout the nation's detention centers. A collective "Ya basta!" hangs like a cloud over the petition for a writ of certiorari.

If the SCOTUS permits the Department of Justice to implement DAPA and expanded DACA, millions of parents would be allowed to remain with their children in the United States-saving millions of dollars on unnecessary deportations. On the other hand, denying millions of undocumented persons some semblance of dignity will degrade the human character of the United States.

November 20, 2015

What's Love Got to Do with It?

I'm honored to be a participant at this historic conference on civil rights at Duke Law School this weekend, "The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America," organized by the school's Center on Law, Race and Politics.

I offered some provocative thoughts on the opening plenary here this morning, challenging the panel and audience to grapple with a subject that is crucial to the success and sustainability of any civil rights movement: LOVE.

King and Gandhi led the two greatest civil rights movements in modern history in the name of love. Both knew that to bring about change - and most importantly, to sustain it, they needed to cultivate sympathy and love for one's fellow citizens.

In her new book, Political Emotions: Why Love Matters for Justice, the political philosopher Martha Nussbaum argues that a society based on the premise of the equal rights and dignity of each person must not neglect the important work of cultivating what she calls "political emotions." Without education and arts that help people dive into the intimate life and problems of the other, through literature like To Kill a Mockingbird and Between the World and Me, we cannot develop mutual understanding and feelings of empathy and affection for others different from ourselves.

Nussbaum's book centers on the question of this conference - how is cultural change introduced? What are the tools and prerequisites for social revolution?

Social revolution is to be distinguished from political revolution. While the latter refers to changes in government, social revolutions - or what Kwame Anthony Appiah calls "moral revolutions" - incite change in social attitudes, real world behaviors and people's way of thinking. Revolutionary thinking requires, literally, a change of heart towards others-towards persons formerly viewed as slaves, as inferior, and as subhuman. From the mantra that "women's rights are human rights" to  #blacklivesmatter, the challenge is to promote an emotional transformation that would bring strangers, even enemies, within one's own "circle of concern," as philosopher Nussbaum calls it. We need to see the other is one of us and part of our own nation, community, and story.

As a scholar of law and culture, I study the role of popular culture and the arts in social production and social revolution. As John Dewey reminds us, there is nothing quite like art as a vehicle for offering an intimacy with the lives of people different from ourselves. In short: art matters for justice. It is a critical tool in the process or emotional transformation. Nussbaum writes: "If the other has been dehumanized in the imagination, only the imagination can accomplish the requisite shift."

So Bono and Will i. Am. are as important to this conference as the great scholars and lawyers assembled here. Music, book clubs and conversations in the public culture about television, film, and social media can help foster empathy for distant others, and also the critical commentary that is central to a democratic government. Unlike legislation or works of political philosophy, they "promote readers' emotional involvement in the events" and encourage dialogue.

On that score, however, a report of Hollywood diversity in 2015 reveals that in fact, the world's most powerful cultural producers are failing our democracy.  The report finds that though minorities are 40 percent of the U.S. population, they are only 1 in 6 among broadcast scripted leads and white actors dominate top credits. In short, according to Hollywood, black lives do not matter, and neither do Latino or Asian lives, or women, for that matter. These numbers reflect the failure of our collective imagination; our failure to use art to imagine a better world.

We cannot shun art, culture, and emotions in our movement. As Nussbaum says, "ceding the terrain of emotion-shaping to antiliberal forces gives them a huge advantage in the people's hearts and risks making people think of liberal values as boring and tepid." Love is the very life of our movement.


November 20, 2015

Duke Law Symposium on Civil Rights

Senior Associate Dean Madhavi Sunder and I are at Duke Law School today. We are speaking in the symposium, "The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America" by the Center on Law, Race and Politics.

Dean Sunder and I are panelists in the first plenary session of the day, titled, "Reflections on the Present and Future of Civil Rights Movements." The panel is being moderated by our former King Hall colleague Angela Onwuachi-Willig, who's now at the University of Iowa College of Law.

Some of the panels are being live-streamed. Visit the Center's symposium website to view!

Here are the symposium poster and description:

In 2014, the nation marked the fiftieth anniversary of the March on Washington, the Civil Rights Act of 1964, and Freedom Summer.  In 2015, we recognized the fiftieth anniversary of the Voting Rights Act of 1965.  As we move forward in the 21st century, however, America finds itself at the beginning of a new era defined by its own set of civil rights struggles. The battles of 2015 are in some ways markedly different from those of the 1950s and 1960s, as "whites only" signs and overt displays of societally condoned racism are mostly relegated to history.  However, what remains is a country full of disparately impacted populations, with people of color facing disadvantages at home, at work, at school, and in the justice system, all in the context of a society that prides itself on its imagined march towards post-racial colorblindness.

A shifting landscape, however, simply means that the civil rights movements of the 21st century must also shift in line with modern realities. "The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America" presents an opportunity for scholars, teachers, practitioners, and activists to engage with each other as they discuss their unique perspectives on inequalities throughout different facets of modern America.  In exploring today's civil rights struggles, including the disproportionate imprisonment of populations of color, decreased access to housing, and persistent roadblocks to basic civic freedoms such as voting, this conference will provide an opportunity for those who recognize the persistent impact of systematic racism to reflect on the past and present in order to better inform the future.

November 16, 2015

Environmental Law Conference 2015 at Yosemite

On October 22-25, I was joined by 20 current King Hall environmental law students in attending the California State Bar Environmental Law Section's annual Environmental Law Conference at Yosemite.  This was a record turnout of King Hall students at what is California's premier environmental law conference.  It provided this record number of King Hall students a fabulous opportunity to gain a comprehensive overview of California environmental law and policy; to enjoy the spectacular natural resources of Yosemite National Park; and to network with 500 of California's top environmental lawyers and policymakers.

Above: members of the UC Davis School of Law Environmental Law Society. Standing L-R: Laura Taylor, John Miller, Nick Moore, Andrea Abergel, Anne Badasci, Daniel Quinley, Randy Reck, Hank Crook, Ara Karamian, Kaitlyn Kalua, Sean Drake, Lindsay Moorhead, James Anderson, Amanda Saunders, Professor Rick Frank, Aaron Wilensky. Kneeling L-R: Meredith Hankins, Michel Wigney, Sophie Wenzlau, Laura Flynn, Victoria Bogdan Tejeda.


Above: Members of the UC Davis School of Law Environmental Law Society watch the sun set over the valley from one of the many Yosemite hiking trails. L-R: Laura Taylor, Anne Badasci, Hank Crook, Victoria Bogdan Tejeda, John Miller, Ara Karamian.



November 16, 2015

Employment Authorization, the DAPA Memo and the Fifth Circuit’s Opinion

Cross-posted from Immigration Prof Blog.

On November 9, the Fifth Circuit denied the federal government’s petition to stay the federal district court’s injunction in Texas v. United States. The ruling upheld the injunction, preventing the implementation of the administration’s extended DACA and DAPA programs, otherwise known as the DAPA memo. The court decided that the Obama administration’s proposed implementation of the DAPA memo was a substantive rule implemented in violation of the Administrative Procedure Act’s requirements for notice and comment rulemaking. Substantively, the court held that the executive branch overreached its authority to issue employment authorization to the millions of undocumented individuals that would qualify under the administration’s deferred action program. In this post I analyze the executive branch’s authority to issue employment authorization documents.

The DAPA memo stated that eligible undocumented individuals can apply for deferred action, and that “each person who applies for deferred action pursuant to the [DAPA] criteria . . . shall also be eligible to apply for work authorization for the period of deferred action.” DAPA Memo at 4. The Court of Appeals focused on the reference to employment authorization, and its ability to transform the rights of an undocumented person. The court noted that because the government was outside its authority to grant deferred action, it was also outside its authority to grant employment authorization.

The Court of Appeals is wrong. The employer sanctions provisions of Immigration Reform and Control Act (IRCA) expressly grant wide latitude to the agency, and Congress specifically intended to provide the agency with this broad authority. And so, the Court of Appeals got it backwards when it concluded that

“[I]f DAPA’s deferred-action program must be subjected to notice-and- comment, then work authorizations may not be validly issued pursuant to that subsection until that process has been completed and aliens have been ‘granted deferred action.’”

As the government argued and the dissent concluded, the agency has the authority to grant employment authorization regardless of DAPA; it is its authority to regulate worksite immigration enforcement that allows it to also grant deferred action on a category of individuals for its convenience.

Congress granted the agency this broad authority precisely to enable the agency create what is now the vast and largely-expanded infrastructure for worksite enforcement. If Congress had not vested the agency with flexibility in creating the categories for proper employment authorization, the carefully-created compromises in the employer sanctions provisions would not have been sustainable.

When Congress first set up employer sanctions and worksite immigration enforcement scheme in IRCA, it made the explicit decision to give the executive branch the authority and discretion to provide employment authorization to certain classes of noncitizens. INA § 274A(h)(3) defines an “unauthorized alien” for employment purposes:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.

The clear meaning of this language is to give the Attorney General discretion to authorize employment under the Act. IRCA provides specific guidance to the agency about its power to determine who is eligible for work, and yet the employer sanctions provision is silent on the question of how unlawful presence should be considered. The Act further provided, “The Attorney General shall, not later than the first day of the seventh month beginning after the date of enactment of this Act, first issue, on an interim or other basis, such regulations as may be necessary in order to implement this section [which included INA § 274A].”

The Attorney General acted pursuant to this power, issuing regulations governing the types of individuals who were employment authorized by virtue of their immigration status as well as those eligible to apply for employment authorization subject to agency approval. Among those authorized to apply for employment authorization subject to agency discretion were individuals with deferred action. See 8 CFR 274a.12(c)(14).

It is important to remember that employment authorization provisions were developed as a comprehensive worksite enforcement scheme aimed at punishing EMPLOYERS, not employees, for hiring unauthorized workers. Employment authorization was seen by Congress as a way to make it easier for employers to identify authorized employees and to create a safe harbor for employers who were wary of the effects of worksite enforcement efforts on their own liability. The impetus for employer sanctions was less about protecting American workers (as the Court of Appeals suggests) than it was about making employers accountable for hiring foreign-born workers. The employer sanctions were not targeting unlawful presence. Rather they were targeting employers who hired workers without employment authorization. The distinction is important because employers fought very hard to ensure that they were not converted into private immigration enforcement officers. They, as well as Congress, wanted to leave it up to the agency to make decisions about employment authorization, especially in those cases in which immigration status itself did not automatically confer employment authorization. The agency’s regulations, implemented in 8 CFR 274a.12(c), list at least 25 such situations. Employment authorization, therefore, has become a critical element in the enforcement scheme designed to protect employers by providing a safe harbor. That employment authorization, and the agency’s ability to grant it, are questioned today, almost 30 years after implementation, should cause employers great concern.

There are important effects beyond undermining the employer sanctions provisions. From a civil rights perspective, the employer sanctions provisions would strip all meaning from prohibitions on alienage discrimination that also were a part of the grand bargain between Congress and employers in the implementation of worksite immigration enforcement. Under the alienage discrimination provision, an employer cannot discriminate against an employment-authorized worker on the basis of alienage. The provision was put in place alongside the safe harbors in the employer sanctions provisions to ensure that employers did not discriminate in their hiring practices and claim that they did not have the capacity to distinguish between employment-authorized and unauthorized workers. The Court’s ruling now puts employers in a bind if they cannot rely on the agency’s authority to grant employment authorization. In other words, when Congress implemented IRCA, it understood that there would be a universe of unlawfully present individuals seeking work. It defined “unauthorized alien” specifically in the statute to give the agency the flexibility to monitor, regulate and control that universe. Employment authorization does not make an individual lawfully present, nor does it provide any of the benefits that the Court of Appeals imagines. It does, just as Congress intended, provide the immigration agency the flexibility and authority to authorize employment as it sees fit, so that the ultimate goal of employer sanctions – to make the employer accountable for unauthorized work – can be achieved.

The Court of Appeals displayed a fundamental lack of understanding of IRCA and the relationship between employment authorization and DAPA. If it had understood the genesis and history of employment authorization and its relationship to employer sanctions, it would have understood that deferred action is a mechanism to provide the agency with the type of flexibility necessary to enforce employer sanctions. Bringing people out of the shadows, as President Obama suggested, is really about maintaining the employer sanctions system that Congress so carefully crafted almost 30 years ago.

November 12, 2015

NAPABA in New Orleans 2015

At the National Asian Pacific American Bar Association (NAPABA) meeting in New Orleans last week, I spoke on a panel for attorneys interested in transitioning to the legal academy; Professor Rose Cuison Villazor moderated. The two of us are involved in reactivating NAPABA’s law professor’s committee, the goal of which is to serve as a link between the practicing bar and the legal academy. 

Me, Professor Villazor, and alums Atticus Lee '13, clerking for the USDC, Southern District of Texas (our co-author in the 1965 immigration Act book) and Teddie Hsu '10 of Snell & Wilmer in Los Angeles

Our panel on entering the legal academy: Professor Villazor, me, Kim D. Chanbonpin of John Marshall in Chicago, and Elaine Chiu of St. Johns

I also gave the keynote address at the luncheon of the International Law Section, talking about my work with the UC Davis APALSA getting the California Supreme Court to posthumously admit Hong Yen Chang, the first Chinese American attorney in New York who was denied admission to the California bar in 1890 because of his race.  The California Supreme Court admitted Hong Yen Chang in March.

November 11, 2015

"The Uncondemned" at Napa Valley Film Festival, Nov. 12-15

"The Uncondemned," a feature documentary about the first conviction of rape as a war crime, is showing at the Napa Valley Film Festival, which starts tomorrow, Thursday Nov. 12.  

That first conviction came in 1998 in a decision by the International Criminal Tribunal for Rwanda (ICTR) in the case against Jean-Paul Akayesu, the mayor of Taba Commune.  I worked at ICTR as a gender consultant in 1996, analyzing the evidence of sexual assault in the Akayesu matter, and I am therefore one of the "baby lawyers" who worked on the case and who is featured in the film. (Photo below from 1996, as we flew between Kigali where the Office of the Prosecutor was located and Arusha, Tanzania, where the tribunal judges sat.) 

The film already won two awards at the Hamptons International Film Festival, including the Brizzolara Family Foundation Award for the best film about conflict and resolution. The filed this story about the film and that award.

I have seen the film once before, this summer in Rwanda when the Rwandan witnesses (one of whom is pictured in the flyer) saw it for the first time.  Read more in this previous blog entry.  I'm looking forward to seeing it again tomorrow night, this time with two UC Davis colleagues, Keith Watenpaugh (Religious Studies, History, Human Rights) and Michael Lazzara (Spanish, Cinema and Digital Media). Both are involved with UC Davis's Human Rights Initiative, a project of the Davis Humanities Institute.  Hope to see some of you in Napa this weekend, where the film will be shown at a different venue each day.  Here is the schedule.

November 9, 2015

Business Law Journal Symposium on Corporate Data Breaches

At UC Davis School of Law, students and faculty work together to organize some amazing events. 

Last Friday, I had the pleasurable opportunity to provide a welcome to this year's UC Davis's Business Law Journal symposium on "Corporate Data Breaches: What Companies Can Learn from Recent High Profile Attacks."  The symposium examined the new challenges in the increasing numbers of major corporate data breaches.  The Journal brought together a group of the nation's leading professors and lawyers, with diverse expertise, all of whom are well-versed on corporate data breaches.    

We are proud of our business law faculty curriculum at UC Davis School of Law and have had a tradition of excellence in the field.  Professors Anupam Chander and John Hunt participated in the event.  I would be remiss if I did not give a special thanks to Professor John Hunt and law students Lauren Woods, Michel Wigney, and James Swearingen for their hard work in planning this symposium. 

The keynote speaker was Justin Cain, the California Cybersecurity Coordinator for the California Governor's Office of Emergency Services.   Justin is part of the California Cybersecurity Task Force, a statewide partnership comprised of key stakeholders, subject matter experts, and cybersecurity professionals from the public sector, private industry, academia, and law enforcement who are all working to advance and strengthen California's cybersecurity.

November 3, 2015

Some Thoughts on the Oral Arguments in the Supreme Court in Torres v. Lynch: The Latest Crimmigration Case is Too Close to Call

Cross-posted from Immigration Prof Blog.

This morning, the Supreme Court heard oral arguments in Torres v. Lynch, which was previewed on the ImmigrationProf blog last week.   Here is the transcript to the arguments.

The case involves another effort by the U.S. government to remove a long term lawful permanent resident of the United States based on a single -- and relatively stale -- criminal conviction.  As discussed in my preview to the arguments, the Supreme Court has taken a number of criminal removal cases in recent years, with the immigrant winning a majority of them.  See, e.g., Moncrieffe v. Holder (2013); Carachuri-Rosendo v. Holder (2010).

Jorge Luna Torres, a lawful permanent resident from the Dominican Republic, came to the United States in 1983.  The sole blemish on his record is a 1999 conviction under a New York arson statute, for which he was sentenced to one day in jail and five years of probation.  In 2006, Torres was denied re-entry into the United States as inadmissible because of the conviction of an "aggravated felony."  Torres is now gainfully employed and engaged to be married.

The technical -- and dry -- legal question presented by the case is whether a state offense constitutes an "aggravated felony" under Immigration and Nationality Act § 101(a)(43), 8 U.S.C. § 1101(a)(43), on the ground that the state offense is "described in" a specified federal statute but the federal statute includes an interstate element not found in the New York arson statute.  Conviction of an "aggravated felony" has significant immigration consequences; such a conviction renders a noncitizen, including a lawful permanent resident, subject to mandatory removal and detention and makes him or her ineligible for almost any relief from removal.  

As described by Steven Vladeck on SCOTUSblog, the Third Circuit was the first court of appeals to consider the specific question whether conviction under the New York arson statute constituted an aggravated felony; it departed from four circuits that concluded that state law offenses could constitute aggravated felonies even if the federal statute those offenses were "described in" included am imterstate element that the state offense lacked. The Second Circuit agreed with the majority of courts of appeal and disagreed with the Third Circuit.  The court explained that under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-844 (1984), it was required "to defer to an agency's reasonable interpretation of the statute it administers."  For additional analysis of the legal issues and background in the case, click here.

The basic thrust of the arguments cover familiar doctrinal terrain: 

(1) what is the proper interpretation of the U.S. immigration laws?; 

(2) the application of the rule of lenity in cases involving the criminal removal grounds; and

(3) the deference properly afford the Board of Immigration Appeals (BIA). 

See, e.g., Kawashima v. Holder (2012).  

Torres argues that the plain language of the statute governs and that, if there are any ambiguities, the rule of lenity favoring the narrower interpretation of the removal provision in question.  In contrast, the U.S. government argues that the language of the statute and its context justifies removal and that deference to the BIA is required under Chevron.  For analysis of a number of cases raising similar issues in the Supreme Court in the 2009-13 Terms of the Court, click here

Matthew L. Guadagno, a sole immigration practitioner in New York City, argued on behalf of Petitioner Jorge Torres.

Elaine Goldenberg, Assistant to the Solicitor General, argued for the United States.

I did not attend the oral argument and gleaned whatever insights that I could from the transcript.  Here they are for what they are worth.

All in all, each attorney received heated questions from the Justices, with a specific focus on the technical intricacies of the statutory provisions in the Immigration and Nationality Act in question.  Guadagno had some rocky moments but so did Goldenberg. 

Justice Sotomayor seemed troubled that the Petitioner did not adopt the statutory argument of what she said was the National Association of Criminal Defense Lawyers but seems to have been the argument of the National Immigrant Justice Center and the American Immigration Lawyers Association (page 14) i.e., that the statute should be limited to convictions for "explosive material" offenses.

There was general concern about the implications of the interpretations of the statute offered by both the Petitioner and the U.S. government. 

Torres' interpretation might allow serious arsonists to not be found to have committed an "aggravated felony," a concern expressed by Justice Breyer.  One concern raised by the government was that some child pornography offenses without interstate elements might fall outside the purview of "aggravated felony" if Torres' interpretation was accepted. 

On the other hand, Justice Ginsburg worried that the U.S. government's position might result in mandatory  removal (i.e., no room for administrative discretion) of Torres for a relatively minor arson conviction, with his sentence being one day in jail and five years of probation.  Goldenberg somewhat surprisingly pounced on this expression of sympathy, taking no prisoners:  "That's right that he can't obtain cancellation of removal, and that's consistent with Congress's intent in putting the aggravated felony provision into place, which was to constrain the attorney general's discretion . . . ."  It was mentioned several times during oral argument that the record was not clear about the precise facts surrounding Torres' arson conviction.  

Chevron deference only came up as a mere afterthought in the arguments.  Justice Ginsburg asked what respect was owed the BIA's interpretation.  Guadagno said that it was not owed "any" deference.

I have a hard time predicting how the Court will decide Torres v. Lynch.  It seems like a very close call to me but, if I had to guess, the U.S. government's tough position may win out.  My sense is that Chief Justice Roberts and Justice Alito were convinced by the government's  arguments. 

Depending on the Supreme Court's decision, the case could have an impact on many criminal removal cases, which have been the centerpiece of the Obama administration's immigration enforcement efforts.