March 28, 2022

Race and Politics in Judge Ketanji Brown Jackson's Hearings

[Cross-posted from the Daily Journal]


By Kevin R. Johnson


Ketanji Brown Jackson has the profile of a perfect nominee to be an associate justice on the U.S. Supreme Court.

Harvard College. Harvard Law School. Editor of the Harvard Law Review. A law clerk to two federal judges and Associate Justice Stephen Breyer. Criminal and civil experience. With over  nine years as a federal judge, Judge Jackson has more judicial experience than Justices Elena Kagan, Brett Kavanaugh and Amy  Coney Barrett had when confirmed. So why the cringeworthy treatment of Judge Jackson, who would be the first African­ American woman on the high court, by Republican members of the Senate Judiciary Committee? Sadly enough, race and partisan politics deeply influenced the treatment of                      Judge Jackson.

Over three days of confirmation hearings, Judge Jackson with poise, dignity and patience thanked each senator for every single question and thoughtfully attempted  to answer each one. She explained her approach  to deciding cases as a judge. With grace, Judge Jackson always maintained a calm and professional demeanor even when some of the senators did not.


In deciding cases, Judge Jackson described her approach as carefully adhering to the constitutional and statutory text and following the intent of the drafters of the text. As a federal district court judge, Judge Jackson decided the cases based on the facts and the law in a careful -- might I say judicious -- way. She appears to be a moderate pragmatist in her judicial approach, much like her mentor who she is set to replace, Justice Breyer.

Wary of being called out as racists, the Republican senators on the Judiciary took a roundabout path to                            challenging Judge Jackson. They persistently sought to paint Judge Jackson as "soft on crime.”

The endorsements of the Fraternal Order of Police and the International Association of Chiefs of Police did not         stop the Republican senators' from pushing that attack. Nor did the fact that Judge Jackson's own brother is a law enforcement officer.

In 1967, senators in similar fashion claimed that the first African-American on the Supreme Court, Thurgood Marshall, was soft on crime. Like Jackson, Marshall also represented criminal defendants.

Crime historically has been one way of indirectly talking about race in the United States. In successfully running for president in 1968, Richard Nixon campaigned on a "law and order" platform that tapped into concerns of some whites about riots, as the nation reckoned with civil rights demands by African-Americans. At a time when the police killings of George Floyd, Breanna Taylor and other African-Americans had the nation confronting systemic racism in the criminal justice system, it is cruelly ironic that the Republican senators again relied on crime to assail a Black nominee with outstanding credentials.

Senator Josh Hawley, R-Mo., in particular, joined by others, including Sens. Lindsay Graham, R-S.C., Ted Cruz, R-Texas, and Tom Cotton, R-Ark., caustically challenged Judge Jackson on crime and her sentencing of defendants convicted of possession of child pornography. They interrupted and badgered her while exhibiting general disrespect, at times disdain, for Judge Jackson.

In a similar vein, several senators questioned Judge Jackson's representation of detainees labeled as enemy combatants on Guantanamo Bay. Other senators joined in the piling on about the representation of terrorists Senator Graham, at one point, lashed out that he hoped that the detainees just would flat out "die in jail.”

The conservative challenge to critical race theory, which challenges racial discrimination in U.S. society, came into play in the interrogation of Judge Jackson. Senator Cruz questioned her about books assigned to students    at Georgetown Day School, a private school for which she serves on its board of trustees. Waving books around in a manner that likely will soon be parodied on Saturday Night Live, he brought blown-up pictures of pages from one book titled, "Antiracist Baby," which he alleged embodied the evils of CRT. One can only wonder why Judge Jackson would be questioned about CRT. As she succinctly put it, "I’ve never studied critical race theory and I've never used it. It doesn't come up in the work that I do as a judge." Because Judge Jackson is Black, she apparently in the eyes of some conservatives is a suspected underground CRT adherent.

Partisan politics, with the midterm election on the horizon, also came into play. Playing to her conservative base, including bringing up CRT, Sen. Marsha Blackburn, R-Tenn., questioned Judge Jackson about, among other things, the rights of transgender people. One of the incredible questions she posed to Judge Jackson was  how she would define the word "woman." Judge Jackson's actual views on transgender rights seemed to be irrelevant to Blackburn's questioning.

Graham appeared angry about the past political skirmishes during previous confirmation hearings. He asked Judge Jackson to rate her commitment to religious faith on a scale of one to 10, even though he admitted that  questions about religion were inappropriate; he asked them because questions on religion were asked of Justice Barrett at her confirmation hearings. In an angry tone, Graham claimed that the "radical left" supported her nomination and attacked the record of Graham's preferred candidate, Judge Michelle Childs of South Carolina.

The confirmation hearings revealed much about the strength of Judge Jackson's character. She mentioned that, when she began at Harvard, it was a "rough" period of adjustment. A Black woman saw her, apparently looking downtrodden, and gave her one word of advice. "Persevere," she told a younger Judge Jackson. That is  precisely what Judge Jackson did throughout the Republican onslaught at the confirmation hearings.

In the end, the U.S. Senate -- as it should -- will almost certainly confirm Judge Jackson as a Supreme Court justice. Nonetheless, the gauntlet that she was subjected to was just another troubling episode in this nation's long history of mistreatment of Black women. "Race baiting" is one characterization of the Republican senators' hostile treatment of Judge Jackson. Or, to use Justice Clarence Thomas' phrase used to describe his  1991 confirmation hearings, was it a "high-tech lynching"?

March 28, 2022

Opening the Border but Shutting the Door

[Cross-posted from ImmigrationProf Blog]

By Raquel Aldana

I sat across a group of Haitians at a small restaurant in Tijuana, La Antigüita Tamales. King Hall students had just finished legal consultations with them about their prospects for asylum in the U.S. We shared a meal and greeted each other as they talked amongst themselves in Creole. One of them asked me in good Spanish if I was with the group from the U.S. I nodded. Next week they will open the border, he said, and I will seek asylum. I smiled meekly and engaged him with his story. It weighed heavily on me to have to explain to him the many reasons why the predicted end of Title 42 (not official yet I cautioned him) would unlikely alter the course of his fate. But it seemed like since our arrival, my students and I could offer little hope to most asylum seekers that an open border meant an open door, at least to them.  

That morning alone I met two Mexican families facing terror in their own country. One young couple, with five young children, fled when a group threatened to kill them and their children. It proved too much when constant images of mutilated children landed on their phone daily for their alleged failure to pay a debt which had quadrupled in weeks when the terms of repayment shifted, and exuberant interests kicked in. Another mother was with her 22-year-old son who just two weeks ago had been kidnapped and tortured by a cartel and then released only to warn his family they would be killed if he and his younger brother failed to join them.  I tried my hardest to help these families prepare for an eventual credible fear interview. Attempting to fit their terror into the constraints of the nexus requirement proved frustrating and inhumane. For the parents, the why these cartels chose them and their children to terrorize seemed both irrelevant and obvious. I agreed. And yet, explaining the obvious, that these groups target the most vulnerable among them simply because they can, would not suffice under the immigration definition of particular social group. As we struggled together to construct a plausible particular social group, what should have been a slam dunk case became a low probability of success for U.S. asylum.        

Increasingly, most asylum seekers who fail to meet a dated and strict definition of asylum face cruel barriers and terrible odds even when they are allowed to make a claim. In El Salvador yesterday, a gang-related killing spree left 62 murdered in the streets in a single day. Most were vendors and other poor souls caught up in the terrible violence the government cannot or will not control. Neither the rates of the killings nor their cruelty was at all different from what Salvadoreans endured during the country’s other civil war. But then and now, Salvadoreans and Mexicans and Haitians and Guatemalans and Hondurans and many others facing so-called private forms of generalized terror encounter shut doors for asylum when they arrive at our borders. Remember when U.S. law turned a blind eye to domestic violence directed at women because it was so-called, a private sphere? This is not different. But there is nothing private about the violence asylum seekers from these nations are enduring. Their terror is in full public display and the root causes of it comes with public dirty hands, with our own nation bearing blame.

Our violent borders and our wars on drugs, fought inside and throughout the American hemisphere, are but two reasons why the U.S. government cannot simply dismiss the terror in these countries as privatized forms of violence we can ignore.

I set out to write a more celebratory blog. The past three days have been intense and, yet, during it, the enormous talent and commitment of eight King Hall students who traveled to Tijuana has been on full display. Over three days, Pamela, Jennifer, Michael, Vannalee, Monica, Lorena, Jazmine and Ivette met with over 150 migrants, some hoping to seek asylum, other hoping to return to their families and home after deportation. We came here with open eyes. We knew we would bear witness to trauma. We also knew we came bearing little hope from law. Despite this, the students did an amazing job with what they had and provided an enormous help to migrants. Sunday afternoon, for example, only two MPP cases remained; a Nicaraguan and a Colombian asylum seeker had hearings in two days, neither of them had lawyers. Over several hours, our students sat with them and helped draft a pro se case of how best to assert their claims. Each of our students has a story like that to share. They will share some of these stories and the insights they gleaned from their time in Tijuana on April 4 at Noon at King Hall, Room 1301 or over zoom. You can register here.

I want to close by acknowledging the heroes and sheroes we met in Tijuana. Among them, three amazing individuals deported from the US, Ester, Danny and Pricila, now run shelters, provide food, and otherwise support the legal and social needs of migrants. Our students fundraised for this cause, and we are sending donations to them to help them with their labor. It is not too late to add your grain of salt. You can do so here.  Finally, I want to thank Robert Irwin whose Humanizing Deportation Project set the stage for our work in Tijuana. I also want to thank King Hall for funding student travel, and the many other entities at UC Davis, like the Office for Public Scholarship and Engagement and the Global Migration Center for their amazing support.

March 16, 2022

Immigration Status Identifiers in Crime News Stories

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

Terminology has proven to be tricky in public discussions of immigration.  Recognizing that the terms “alien” and “illegal alien” dehumanize human beings and rationalize their harsh treatment, news services now refer to undocumented immigrants.  For similar reasons, a proposed immigration reform bill would replace “alien” with “noncitizen” in the U.S. immigration laws. 

Reference to a suspected criminal’s undocumented status in a news story also may be problematic.  Consider this March 8, 2022 Fox News headline:  “Gunman who Killed Three Daughters in California Church was in US Illegally.” By tapping into popular stereotypes, such references inflame passions about—and in effect constitute subtle racial code for--Latina/o immigrants.  The salacious reference to a person’s immigration status results in the same kinds of damages as referring to an “African American” criminal defendant, which best journalistic practices generally prohibit.  Such references to immigrant status generally should be similarly avoided in crime news stories.

A Recent Example of News Exploitation of the Undocumented Immigrant

Last week, press outlets across the nation reported on a tragedy at a church in Sacramento, California.  On a supervised visit, a father, a Mexican citizen reportedly with mental health and drug problems, killed his three children and a chaperone before killing himself at a church.  Following an Associated Press (AP) report that the suspect had overstayed his visa and thus was not authorized to be in the United States, a local Sacramento news station reported that:  “David Mora Rojas . . . used a ‘ghost gun’ [a manufactured gun without registration] in the shooting.  Mora Rojas also overstayed his visa after entering California from his native Mexico” (emphasis added). 

AP originally speculated in its report “that a possible motive [for the killings] was fear of being separated from the children through deportation.”  In correcting the story, AP later admitted that “the AP did not have the reporting to substantiate that as a possible motivation.”

Oddly, rather than focus on mental health, drugs, or the proliferation of “ghost guns,” news agencies and politicians have seized on the news report about the father's immigration status and attempted to make a family tragedy into an immigration issue.  For example, Sacramento County Sheriff Scott Jones, currently running for Congress, declared in a Facebook post that blame for “this horrific tragedy” should be placed on “the deplorable state of our national immigration policies, and California’s Sanctuary State Laws.” 

Sensationalism in news stories unfortunately is nothing new.  It occurs regularly in reports about immigrants.  Although Fox News highlighted the undocumented status in the Sacramento case, such treatment is not confined to conservative news outlets, with the mainstream AP gratuitously referring to the Sacramento suspect’s immigration status, ABC News reported that, an “undocumented immigrant from Mexico, was found guilty by jury of first degree murder [of Mollie] Tibbets . . . in . . . rural . . . Iowa, in July 2018.” 

But what did David Mora Rojas’ immigration status have to do with the killings in Sacramento?  Unlike mental health, drugs, and ghost guns, his immigrant status does not seem relevant to the tragedy.  Being undocumented is not necessarily a crime and is not necessarily newsworthy. The fact that he overstayed his visa and thus was technically undocumented does not relate to the crime of murder.  Injecting his undocumented status into a news story about the tragic killings serves no other function than to stir up fears of immigrants and crime.  Moreover, because the popular stereotype of the criminal immigrant in the United States is that he is Mexican, the reference to undocumented status signals to many the Mexican background of the criminal suspect.  In announcing his successful 2016 run for President, Donald Trump played into this stereotype by characterizing Mexican immigrants as “criminals” and “rapists.”

Although some immigrants—from Mexico and elsewhere—do in fact commit crimes, studies consistently show that immigrants commit crimes at lesser rates than native born U.S. citizens.  Moreover, news stories that focus gratuitously on immigration status can result in the proliferation of hate crimes.  Recall that the shooter in the mass murder of Latina/os in El Paso in 2019 wrote a “manifesto” with the kinds of hatred directed at Mexican immigrants repeating many of the invectives that President Trump did in referring to people of Mexican ancestry.

There is another reason to avoid reference to immigration in crime news stories.  Undocumented status is not always easy to define.  A person seeking asylum for fear of gang violence in Honduras may not currently have authorization to be in this country but might be entitled to it.  A long-term resident without authorization also might be eligible for relief from removal under the immigration laws.  Being undocumented is not always as clear-cut as a simple reference to being undocumented might suggest. 

Extending the AP Stylebook on Racial Identification to Immigration Status

The AP Stylebook, a bible of sorts of best journalistic practices, cautions journalists on publishing information about a person’s race:  “Consider carefully when deciding whether to identify people by race.  Often, it is an unrelated fact and drawing increasing attention to someone’s race or ethnicity can be interpreted as bigotry.” (emphasis added).  The Stylebook explains its call for caution as follows:

[i]n cases where suspects or missing persons are being sought, and the descriptions provided are detailed and not solely racial. Any racial reference should be removed when the individual is apprehended or found . . . . In other situations when race is an issue, use news judgment. Include racial or ethnic details only when they are clearly relevant and that relevance is explicit in the story.  (emphasis added)

Because there are many times when a source’s race is irrelevant to the news item, the AP Stylebook careful approach to racial identification thus makes sense.  A criminal suspect’s immigration status should not be included in a crime news story unless it has something to do with the alleged crime.  Otherwise, such a reference is not news but simply exacerbates anti-immigrant and racist passions.  The same basic rationale holds true for reference to immigration status.  To paraphrase the AP Stylebook, an entry about immigration status could read, “consider carefully when deciding whether to identify people by [immigration status.]” “Any [immigration status] reference should be removed when the individual is apprehended or found.”

March 15, 2022

New York's Appellate Division Holds that Chinese Judgment Should Not Be Denied Enforcement on Systemic Due Process Grounds

[Cross-posted from Conflict of Laws]

By William S. Dodge

Should courts in the United States refuse to recognize and enforcement Chinese court judgments on the ground that China does not provide impartial tribunals or procedures compatible with the requirements of due process of law? Last April, a New York trial court said yes in Shanghai Yongrun Investment Management Co. v. Kashi Galaxy Venture Capital Co., relying on State Department Country Reports as conclusive evidence that Chinese courts lacked judicial independence and suffered from corruption. As Professor Wenliang Zhang and I pointed out on this blog, the implications of this decision were broad. Under the trial court’s reasoning, no Chinese judgment would ever be entitled to recognition in New York or any of the other U.S. states that have adopted Uniform Acts governing foreign judgments. Moreover, U.S. judgments would become unenforceable in China because China enforces foreign judgments based on reciprocity. But on March 10, just three weeks after oral argument, New York’s Appellate Division answered that question no, reversing the trial court’s decision.

As background, it is important to note that the recognition and enforcement of foreign country judgments in the United States is generally governed by state law. Twenty-eight states and the District of Columbia have enacted the 2005 Uniform Foreign-Country Money Judgments Recognition Act. In nine additional states, its predecessor, the 1962 Uniform Foreign Money-Judgments Recognition Act, remains in effect. At the time of the trial court’s decision, the 1962 Uniform Act governed in New York, but it was superseded by the 2005 Uniform Act on June 11, 2021. Both Uniform Acts provide for the nonrecognition of a foreign judgment if “the judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”

This systemic lack of due process ground for nonrecognition comes from the U.S. Supreme Court’s 1895 decision in Hilton v. Guyot, issued at a time when lawyers routinely distinguished between civilized and uncivilized nations. It was incorporated in the 1962 Uniform Act at the height of the Cold War, and included in the 2005 Uniform Act without discussion, apparently to maintain continuity with the 1962 Act. Despite its codification for nearly sixty years, fewer than five cases have refused recognition on this ground. The leading case is Bridgeway Corp. v. Citibank, involving a Liberian judgment issued during its civil war, when the judicial system had almost completely broken down.

Shanghai Yongrun involved a business dispute between two Chinese parties, which was submitted to a court in Beijing under a choice-of-forum clause in the parties’ agreement. The defendant was represented by counsel, presented its case, and appealed unsuccessfully. Nevertheless, the New York trial court held that the Chinese judgment was not enforceable because China lacks impartial tribunals and procedures compatible with due process. The court relied “conclusively” on China Country Reports prepared by the State Department identifying problems with judicial independence and corruption in China.

In a brief order, the Appellate Division reversed. It concluded that the trial court should not have dismissed the action based on the Country Reports. These Reports did not constitute “documentary evidence” under New York’s Civil Practice Law and Rules. But more fundamentally, reliance on the Country Reports was inappropriate because they “primarily discuss the lack of judicial independence in proceedings involving politically sensitive matters” and “do not utterly refute plaintiff’s allegation that the civil law system governing this breach of contract business dispute was fair.”

On this, the Appellate Division was clearly correct. The State Department prepares Country Reports to administer provisions of the Foreign Assistance Act denying assistance to countries that consistently engage in gross violations of human rights, not to evaluate judicial systems for other purposes. See 22 U.S.C. §§ 2151n & 2304. The Reports themselves warn that they “they do not state or reach legal conclusions with respect to domestic or international law.” Moreover, if these Reports were used to determine the enforceability of foreign judgments, China would not be the only country affected. An amicus brief that I wrote and fourteen other professors of transnational litigation joined noted that State Department Country Reports expressed similar concerns about judicial independence, corruption, or both with respect to 141 other countries, including Argentina, Brazil, Italy, Japan, Mexico, South Korea, and Spain.

The Appellate Division concluded that “[t]he allegations that defendants had an opportunity to be heard, were represented by counsel, and had a right to appeal in the underlying proceeding in the People’s Republic of China (PRC) sufficiently pleaded that the basic requisites of due process were met.” By focusing on the facts of the specific case, the Appellate Division appears to have taken a case-by-case, rather than a systemic, approach to due process. Such a case-by-case approach is expressly permitted under the 2005 Uniform Act, which adds as a new ground for nonrecognition that “the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.” Such a case-specific approach avoids the overinclusiveness of denying recognition on systemic grounds when there are no defects in the judgment before the court.

The Appellate Division’s decision in Shanghai Youngrun continues the growing trend that Professor Zhang and I have noted of U.S. decisions recognizing and enforcing Chinese judgments. Just two months before this decision, in Yancheng Shanda Yuanfeng Equity Investment Partnership v. Wan, a U.S. district court in Illinois recognized and enforced a Chinese judgment in another business dispute. The court expressly rejected the New York trial court’s holding in Shanghai Yongrun, noting “the multiple federal cases … where American courts enforced Chinese court judgments and/or acknowledged the adequacy of due process in the Chinese judicial system.” One hopes that this trend will continue.

March 7, 2022

Exploiting Immigration Passions in a Tragic and Horrible Case

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

News outlets across the nation last week reported on a tragedy in Sacramento. On a supervised visit, a father killed three children, and a chaperone, before killing himself at a church.

Sadly, news outlets and political leaders now are trying to make immigration an issue by highlighting the fact that the father was an undocumented immigrant from Mexico. This kind of sensationalism unfortunately is nothing new and occurs regularly in high profile cases involving immigrants. One should ask the question what his immigration status had to do with the horrible crime? 

A local Sacramento news station reported that:

"The gunman who killed his three daughters, a chaperone who was supervising his visit with the children and himself in a Sacramento County church was known to have struggled with mental health issues, officials said.

New details also reveal that David Mora Rojas, 39, also used a `ghost gun' in the shooting. Mora Rojas also overstayed his visa after entering California from his native Mexico on Dec. 17, 2018, on a non-immigrant visitor visa, U.S. Immigration and Customs Enforcement spokeswoman Alethea Smock told The Associated Press."

As the local report noted, the Associated Press appears to be the source about Rojas' immigration status.

Although mental health issues, not immigration status, appears to have directly resulted in the killings, Sacramento County Sheriff Scott Jones, who is running for Congress, says U.S. immigration policies and California’s sanctuary law somehow are to blame for the deadly church shootings.

"They’ll call me racist and evil," Jones wrote in a Facebook post. "But let me be perfectly clear, there is only ONE thing that allowed this horrific tragedy to occur with certainty: the deplorable state of our national immigration policies, and California’s Sanctuary State Laws."

The killings of the young people in a church by all appearances are a tragedy. We all should think about how it happened and how such tragedies could be avoided. For example, mental health crisis services are not as well funded and accessible as they perhaps should be. Oddly, rather than focus on mental health, news agencies have been broadcasting the father's immigration status and tapping into passions for the purpose of exploitation. President Trump tapped into similar passions, for example, characterizing Mexican immigrants as "criminals" and "rapists."   

The truth of the matter is that Mora's immigration status had absolutely nothing to do with his criminal acts.

Although immigrants commit crimes, studies consistently show that immigrants commit crimes at lesser rates than native born U.S. citizens. News stories that focus on immigration status of alleged criminal perpetrators help reinforce stereotypes that immigrants are predisposed to crime, which is simply not true.  

Immigrant rights advocates do not claim that immigrants who commit crimes should not be held accountable. No one could reasonably say that the perpetrator of a crime like that which occurred in the Sacramento church -- immigrant or not -- should not face criminal charges. With the alleged perpetrator dead, that is not possible in this case. Rather than chase immigration ghosts, we should think hard about how we can act to avoid tragic deaths of young people in the future.