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December 10, 2018

Trump must obey decades-old asylum law

By Kevin R. Johnson

[Cross-posted from the Sacramento Bee]

President Donald Trump, determined to demonstrate he is tough on immigration, is attempting to eliminate a path to legal immigration status that American leaders have respected for more than three decades.

Last month, Trump issued an order that would prohibit people who enter the country unlawfully from seeking asylum because they fear persecution. A federal judge rightly concluded that the order violated the law.

The president has cast asylum-seekers from Central America as criminals and terrorists. In reality, many are women and children fleeing brutal and deadly violence and lawlessness — in other words, the people for whom the Refugee Act of 1980 was written.

The act provides that “(any) alien who is physically present in the United States (whether or not at a designated port of arrival), irrespective of such alien’s status, may apply for asylum.”

The law has long been interpreted as allowing undocumented immigrants apprehended in the United States to apply for asylum when the government seeks to remove them from the country.

Noncitizens must apply within a year of arriving and must satisfy a formidable burden of proof, showing persecution or fear of persecution based on their race, religion, nationality, membership in a particular social group or political opinion. If they can prove their case, they are afforded lawful permanent resident status and ultimately can become eligible for citizenship.

Large groups of migrants sought asylum under other presidents, but no other modern president took the extreme step of eliminating eligibility for an entire group of potential applicants.


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President Jimmy Carter detained thousands of Cubans who fled communism in the Mariel boatlift in 1980. President Ronald Reagan detained asylum-seekers fleeing civil wars in Central America. Asylum claims in those cases were considered even for migrants who unlawfully entered the country.

Presidents George H.W. Bush and Bill Clinton took a more questionable approach toward Haitian asylum-seekers, but it still complied with the letter of the law. Coast Guard cutters interdicted boats of Haitians on the high seas and returned them to Haiti. They could apply for asylum at the U.S. embassy in Port-au-Prince but were kept from reaching the country.

The Haitian approach evolved into the “feet wet, feet dry” policy in which migrants who made it to U.S. territory were permitted to apply for asylum while those who were halted on the seas were returned to their homelands.

Courts have repeatedly stopped the Trump administration’s immigration enforcement policies for violating the law. Courts barred the administration from stripping federal funding from “sanctuary” jurisdictions. Courts halted the rescission of the Deferred Action for Childhood Arrivals policy. Courts stopped the elimination of temporary protected status for Salvadorans, Haitians, and others. While the Supreme Court ultimately upheld the third draft of the “Muslim” ban, the lower courts invalidated two versions of the ban.

Asylum is a cherished form of relief under U.S. law. It helps correct for our failures as a nation, such as turning our backs on Jews fleeing Nazi persecution during World War II. Congress carefully crafted the Refugee Act to ensure the availability of humanitarian relief for bona fide refugees.

President Trump should not be permitted to break the law by fiat and declaring some noncitizens ineligible, even if he finds compliance with the law costly, inefficient or annoying.


Read more here: https://www.sacbee.com/opinion/op-ed/article222580505.html?fbclid=IwAR3ObPmigzYsv1jcxlOfH1sAvBRCew1YOHYaBhJqEO0uC3v0rt3b97-4HAY#storylink=cpy

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The act provides that “(any) alien who is physically present in the United States (whether or not at a designated port of arrival), irrespective of such alien’s status, may apply for asylum.”

The law has long been interpreted as allowing undocumented immigrants apprehended in the United States to apply for asylum when the government seeks to remove them from the country.


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November 2, 2018

Trump is not above the law

By Kevin R. Johnson

[Cross-posted from the Daily Journal]

Earlier this week President Donald Trump called to abolish birthright citizenship, which few reputable scholars believe would be constitutional. This latest action on immigration demonstrates what is becoming more and more apparent: Trump does not feel bound to the rule of law. His immigration initiatives share two fundamental characteristics. First, he seeks to reduce immigration and specifically to reduce the number of immigrants of color coming to, and living in, the United States. Second, despite the frequent claim that the administration is committed to simply enforcing the immigration laws, he attacks judges that issue rulings that he does not like, calls for changes to our immigration laws that he calls ridiculous, and all-too-often ignores laws with which he disagrees.

In 1965, Congress amended the immigration laws to explicitly prohibit discrimination in the issuance of visas on the basis of "race, sex, nationality, place of birth, or place of residence." Passed on the heels of the Civil Rights Act of 1964, the 1965 amendment repealed laws mandating racial and national origin discrimination in the U.S. immigration laws. In so doing, Congress established a blueprint for immigration diversity, allowing millions of people of color to immigrate to the United States. The trajectory toward a more diverse nation, however, is likely to change due to a myriad of policies embraced by the Trump administration that can be aptly characterized as waging war on immigration diversity and the rule of law.

Trump's racial goals should not be surprising. Unlike any president in modern U.S. history, he regularly makes racially explosive comments about Mexicans as "rapists" and "criminals," Salvadorans as MS-13 gang members, Muslims as "terrorists," and El Salvador, Haiti, and nations in Africa as "s***hole countries." Trump has followed up on the incendiary rhetoric with a number of policies -- many of them in tension with the law -- that aim to restrict noncitizens of color from immigrating to the United States.

Consider a few of the Trump administration policies that emphatically demonstrate the President's desire to restrict immigration diversity and, in many instances, have been found to be unlawful.

First, within days of his inauguration, Trump issued an executive order that was intended to bar immigrants from a number of predominantly Muslim nations from entering the United States. When the first ban was enjoined, another one followed. The second version was struck down by the courts, in no small part because of the failure to comply with the law and because of the President's own venomous anti-Muslim statements. Although the third draft of the Muslim ban was upheld on national security grounds by the Supreme Court in Trump v. Hawaii, four justices found that it was motivated by anti-Muslim animus.

Second, Trump has called for ending "chain migration" by restricting family-based immigration to the United States. He also has expressed support for the RAISE Act, which would reduce legal immigration by one-half through reducing family-based immigration, primarily impacting people from Mexico, India and China. Those nations today send the most immigrants to the United States.

The Trump administration also has sought to restrict legal immigration with a recent proposed rule that would tighten the "public charge" exclusion, which has resulted in many immigrants declining to seek public benefits to which they are lawfully entitled.

Third, the Trump administration's "zero tolerance" policies have been enthusiastically directed at migrants from Mexico and Central America. In response to Central Americans seeking asylum, the Trump administration adopted a harsh detention and family separation policy, blaming it on the Democrats and the courts. A public outcry and persistent litigation compelled the Trump administration to end family separation. Now we see similar rhetoric being used against asylum seekers from Central America -- known as the "migrant caravan" -- who are currently in route to the U.S. border.

Courts have played important roles in stopping the administration from engaging in racially charged policies designed to stop Latino families from immigrating to the United States. In particular, the courts have upheld the rights of immigrant children subject to detention under what is known as the Flores settlement, which the Clinton Justice Department agreed to comply with in the detention of minors. The administration continues to resist this legal precedent. It has proposed to undo the Flores settlement so that the administration can detain immigrant children and their families indefinitely.

The Trump administration has challenged "sanctuary" states and cities for refusing to fully cooperate with the U.S. government. Although blocked by the courts, the administration has tried to halt federal funding from going to "sanctuary" cities.

In addition, the Trump administration has sought to eliminate the Deferred Action for Childhood Arrivals, aka DACA, policy for undocumented youth. The policy benefited hundreds of thousands of young undocumented immigrants, with an especially large percentage from Mexico and Central America. Courts have enjoined the rescission of DACA.

The Trump administration announced the end of Temporary Protected Status for Haitians, Salvadorans, Nicaraguans, and nationals of other developing nations. Litigation has challenged those actions.

The Trump administration has aggressively increased removals and adopted approaches that would ensure that more than 95 percent of the noncitizens removed are from Mexico and Central America.

Collectively, these policies would significantly reduce diversity in the number of immigrants admitted to permanently reside in the United States each year. Importantly, such policies violate the spirit if not the letter of the 1965 amendment to the immigration laws and Congress's goal of promoting diversity in immigration law.

Courts time and again have prohibited the Trump administration from pursuing immigration policies that violate the law. Legal and political attention must continue to be paid to these policies in order to prevent the country from returning to its pre-1965 immigration law policy of establishing a white nation. The unlawful war on immigrant diversity should not be permitted to continue.

 

October 15, 2018

Preap High Court Argument Focused on Immediacy of 'When'

By Kevin R. Johnson

[Cross-posted from Law360]

For years, the U.S. government has detained immigrants as a way of enforcing the U.S. immigration laws and to deter future flows of migrants to the United States. Over the last 20 years, the U.S. Supreme Court has regularly grappled with legal challenges to immigrant detention. Just last term, for example, the court in Jennings v. Rodriguez[1] found that there was statutory authority for the detention of certain noncitizens without bond but remanded the case for the court of appeals to determine the constitutionality of the statutory provision in question.[2]

From his first days in office, President Donald Trump as part of an aggressive immigration enforcement agenda has enthusiastically ramped up the use of immigrant detention. In a January 2017 executive order, he announced the end of “catch and release,” a phrase disparagingly referring to the conventional practice of arresting and then allowing noncitizens, who are not at risk of absconding or a threat to the public safety, to bond out of custody while awaiting a removal hearing. Detention became the norm. The Trump administration specifically has engaged in the aggressive use of detention (combined, for a time, with the controversial policy of separating families) in seeking to deter Central American asylum seekers from coming to the United States. Inevitable legal challenges followed and can be expected to continue.

In light of the Trump administration’s aggressive use of immigrant detention, the case of Nielsen v. Preap,[3] which was argued in the Supreme Court on Oct. 10, takes on added significance. The question presented in the case is a technical one of statutory construction. However, the case raises broader questions about limits on the U.S. government in the enforcement of the immigration laws, in this instance the use (and limits) of detention. Oral argument received more public attention than normally received by ordinary immigration cases because newly confirmed Justice Brett Kavanaugh was participating in one of his first arguments. (Unlike Justice Clarence Thomas, Justice Kavanaugh asked questions.)

The statutory question presented in Nielsen v. Preap is whether an immigrant can be subject to mandatory detention under 8 U.S.C. Section 1226(c) if, after release from criminal custody by a state, the U.S. Department of Homeland Security does not immediately take the immigrant into custody. The statute provides that the U.S. government “shall take into custody any alien ... when the alien is released, without regard to whether the alien is released on parole, supervised release or probation ...” (emphasis added). As frequently occurs in immigration cases that come before the Supreme Court, the issues raised boil down to the interpretation of the immigration statute — infamous for its complexity — and the deference, if any, properly afforded the agency’s determination.

The plaintiffs in this case are lawful permanent residents who committed a crime, served their criminal sentences and, upon release, returned to their families and communities to rebuild their lives. Years later, immigration authorities took them into custody and detained them without bond hearings under Section 1226(c). Plaintiffs argue that, because they were not detained “when ... released” from custody, they were not subject to mandatory detention under the statute.

Born in a refugee camp after his family fled the Khmer Rouge in Cambodia, one of the named plaintiffs, Mony Preap has been a lawful permanent resident of the United States since 1981. He has two 2006 misdemeanor convictions for marijuana possession. Years after being released from custody for these convictions, Preap was transferred to immigration detention. Since then, Preap has been granted cancellation of removal, thus allowing him to remain in the United States indefinitely, and released from immigration custody.

Noting that “every day in the United States, the government holds over 30,000 aliens in prison-like conditions while determining whether they should be removed from the country,” the U.S. Court of Appeals for the Ninth Circuit[4] held that the plain language of the statute controlled: “The statute unambiguously imposes mandatory detention without bond only on those aliens taken ... into immigration custody `when [they are] released’ from criminal custody. And because Congress’ use of the word `when’ conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”

The Ninth Circuit’s holding conflicted with four circuits (First, Second, Third and Tenth)[5], a fact noted by Chief Justice John Roberts during oral argument.

In its briefs before the Supreme Court, the United States argues that, properly interpreted, the statute allows for the noncitizen to be subject to mandatory detention under Section 1226(c), regardless of whether the U.S. government takes custody immediately after release from criminal custody. It further contends that the Board of Immigration Appeals[6] has squarely rejected the Ninth Circuit’s interpretation of Section 1226(c) and that the agency’s interpretation deserves deference.[7]

Arguing that the court of appeals correctly interpreted the statute, respondents argue that the statute imposes mandatory detention only upon an immediate transition from criminal to immigration custody. In their view, the plain language and structure of Section 1226(c) compel the court of appeals’ conclusion. Finally, respondents contend that, because the statute is clear and not ambiguous (a prerequisite for deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc.[8]), deference is not justified.

Oral arguments in the case focused almost exclusively on the proper interpretation of the statute. Assistant to the Solicitor General Zachary Tripp argued on behalf of the U.S. government. Asking the very first question, Justice Sonia Sotomayor began by focusing on the proper interpretation of the statute. Tripp replied that the statute made detention mandatory but that there was no restriction on the timing when U.S. immigration authorities had to assume custody after release by state and local law enforcement.

Throughout the argument, questioning centered on the proper interpretation of the statute, with a focus on the language and structure of the particular provision in question, which states that the U.S. government “shall take into custody any alien ... when the alien is released” (emphasis added).

At various points, Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Neil Gorsuch expressed concern about the seeming unfairness of the possibility that, under the U.S. government’s interpretation, the noncitizen could be released and, many years later, put in mandatory detention by Immigration and Customs Enforcement. Justice Ginsburg specifically asked Tripp whether he truly was arguing that “it is totally irrelevant whether ... the change in custody is immediate or it’s seven years down the road?”

Justice Breyer also expressed concern about the length of time between a noncitizen's release and placement in mandatory detention, and mentioned that one of the cases discussed in the briefs mentioned a noncitizen who had been released for stealing bus transfers and the U.S. government arrested him 14 years later. He posed the hypothetical of a grandfather who, under the U.S. government’s interpretation of the statute, might be arrested 50 years after release from state custody. Justice Breyer suggesting that one way to avoid serious constitutional questions was to infer a reasonableness requirement into the statute — mandatory detention is permissible only when there are reasonable delays in the arrest of a noncitizen after release from state custody. Tripp rejected the compromise proposal, ardently resisted any limit on the U.S. government’s detention power under the statute and dismissed the possibility that the lack of a time limit raised a constitutional question.

In short, the justices pushed Tripp on the precise meaning of the statutory language. Throughout the arguments, he emphasized that the statutory language was mandatory and required the government to assume custody any time after the noncitizen's release from state custody; at the same time, Tripp fervently resisted any limits on the time when the U.S. government might assume custody, a position that seemed to trouble a number — perhaps even a majority — of the justices.

Concerns with indefinite detention like the type discussed last term in Jennings v. Rodriguez undoubtedly were on the minds of the justices. When the questioning swerved into the length of detention, Justice Samuel Alito sought to limit the inquiry to the statutory questions before the court.

Cecellia D. Wang, Deputy Legal Director of the ACLU, argued for respondents: Taking the opposite position of the U.S. government, she pressed the argument that the text and structure of the statute left no room for any but the shortest time between release from state custody and the federal government placing the noncitizen in mandatory detention.

Several justices queried Wang about the meaning of the statute. At one point, Justice Gorsuch seemed to enjoy the semantic give-and-take with her about the language and use of grammar. Chief Justice Roberts and Justices Alito and Kavanaugh seemed worried that respondents interpreted “when” in the statute as the same day as release. Justice Alito worried about forcing the U.S. government to act too quickly, especially if state — such as California, which he specifically mentioned — and local governments are not cooperating with the federal government.

In a most revealing part of the argument, Justice Kavanaugh pressed Wang on her interpretation of the statute and stated that, in passing the 1996 immigration reforms requiring mandatory detention, Congress would have known that the federal government would not assume immediate custody “in many cases” but, at the same time, did not place any time limit on the assumption of custody: “Congress knew [federal immigration detention] wouldn’t be immediate and yet Congress did not put in a time limit. That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.” He later questioned whether, as Wang contended, the statute should be read narrowly because Congress was focused on “harshness” toward immigrants not generosity toward them (as her interpretation of the statute would offer). At the same time, Justice Kavanaugh explored on rebuttal with Tripp what he might view as a reasonable time limit for the U.S. government to assume custody of a noncitizen released by the state.

In questioning Wang, Justice Alito suggested that the options for the court in interpreting the statute are to take custody “within 48 hours as required by the Ninth Circuit, some reasonable period or after the alien is released.”

Importantly, there was no real discussion of deference to the agency’s interpretation of the statute. The justices apparently saw the statute as being subject to interpretation, but not having the ambiguity that might require some sort of deference to the agency.

Although it is hazardous to guess the outcome of a case from oral arguments, it struck me that the justices were troubled by what they viewed as the extreme positions posed by the opposing sides in Nielsen v. Preap. Interpreting the statute to allow federal arrest and detention many years after release from state custody, as advocated by the United States, seems unfair. At the same time, requiring immediate arrest by federal officers upon release from state custody, as argued by the ACLU, seems unrealistic. One possibility is that a majority could be cobbled around Justice Breyer’s suggestion that the U.S. government be permitted to subject a noncitizen to mandatory detention if taken into custody within a reasonable time of release from state custody. Such a compromise would perhaps avoid those disputes over the constitutionality of limits that made the case of Jennings v. Rodriguez so difficult to resolve, thus requiring re-argument.

August 6, 2018

Lawyers defending immigrant children in detention are relying on a court case from the '80s

By Kevin R. Johnson

[Cross-posted from The Conversation]

The Trump administration’s immigration policies have brought an old court case back to life in defense of immigrant children at the border, often referred to as “the Flores settlement.”

The case, which was filed in 1985 and settled in 1997, set the rules that the government must follow when it keeps migrant children in its custody. The latest court order based on the settlement took place on July 30, in which a judge barred immigration authorities from giving children psychotropic drugs without consent of parents or legal guardians.

The Trump administration has requested to amend the settlement to allow it to indefinitely detain migrant children. So far, the courts have denied these requests, and will continue to monitor the detention of migrant children.

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 Central America, where violent civil wars had caused tens of thousands to flee. As a result, the government held in custody Central Americans arrested at the U.S.-Mexico border, 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 access of migrants 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 being undocumented.

The American Civil Liberties Union charged that holding Flores indefinitely violated the U.S. Constitution and the immigration laws. The Flores case 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 standards for the treatment of unaccompanied minors who were in the custody of federal authorities for violating the 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 only be kept in federal immigrant detention for 20 days.

The Flores settlement created a framework agreed to by the U.S. government that addressed how migrant children were to be treated if they were detained. It is a landmark settlement 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 Flores settlement was agreeable to the Clinton administration, the Trump administration wants to detain families, including children, for periods longer than permitted by the Flores settlement.

July 30, 2018

Back to the Future?

By Kevin R. Johnson

[Cross-posted in Frank Essays]

As I wrote in 2009, race and class permeate U.S. immigration law and enforcement. This taint stems in large part from the critically important roles of race and class in the formation and maintenance of the American national identity.  Immigration law reinforces and maintains that identity by determining who is admitted to the United States.  A history of exclusion of poor and working people of color from the United States reveals both how we as a nation see ourselves and our aspirations for what we want to be. 

Through aggressive immigration enforcement like that seen in no other administration in modern U.S. history, President Trump has taken race and class in immigration to the next level.  Indeed, his administration has embraced a policy akin to the infamously discriminatory Chinese exclusion laws of the late 1800s. Moreover, his attacks on Mexican immigrants, Muslims, and migrants from “s---hole countries” expressly invoke race and class of migrants as the reason for their harsh treatment.

Immigrants from Latin America

Because of their perceived negative impacts on U.S. society, Mexican and other Latino immigrants, particularly those who are undocumented, are among the most disfavored immigrants of modern times.  President Trump has made no bones about his view that Mexico does not “send their best” to the United States and has labeled Mexican immigrants as a group as criminals.  Although not mentioning “Operation Wetback” by name, President Trump has endorsed the now-discredited deportation campaign of President Eisenhower that removed hundreds of thousands of persons of Mexican ancestry from the Southwestern portion of the United States in 1954.  President Trump also has disparaged Salvadorans, tying them to members of the violent gang MS-13 who are no less than “animals” warranting the harshest of treatment. 

President Trump’s raw demonization of Latinos fits into a long history of discrimination against immigrants from Mexico and, more generally, all persons of Mexican ancestry in the United States.  The demonization is not limited to “aliens” or “illegal aliens” but today affects Latinos in this country of all immigration statuses.

Anti-Mexican sentiment, often combined with class-based bias, has long been prevalent in American social life.  Persons of Mexican ancestry are often stereotyped as little more than peasants who undercut the wage scale of “American” workers because of their willingness to work for “inhuman” wages.  The debates over the ever-expanding fence along the U.S.-Mexico border that President Trump champions and border enforcement generally, the proliferation a few years ago of state and local immigration-enforcement measures such as Arizona’s infamous S.B. 1070, and the popularity of immigration enforcement, reveal both anti-Mexican and anti-immigrant sentiment, as well as legitimate concerns with lawful immigration and immigration controls.  President Trump has fully embraced and amplified these sentiments. 

The difficulty of disentangling lawful from unlawful motivations does not change the real influence that invidious motives have in both the substance and enforcement of U.S. immigration law and policy.

An often-expressed public concern is with the magnitude of the flow of immigrants from Mexico. Some contend that the United States is being inundated – “flooded” is the word frequently employed - with poor, racially and culturally different Mexican immigrants (often referred to as “illegal aliens”) and that this flood is corrupting the national identity of the United States as well as resulting in economic and other injuries to U.S. society.  Consistent with that sentiment, President Trump has tweeted that immigrants “pour into and infest out country.” 

The alleged failure of immigrants to assimilate into American society also is a related, oft-expressed concern and is presumably what motivated the President to say that we need more immigrants from Norway than El Salvador and Haiti. 

As President Trump’s comments about immigrants suggest, recent developments reveal the unmistakable influence of race and class on immigration law and its enforcement.  Consider a few contemporary examples.

Deportations

The Obama administration deported in the neighborhood of 400,000 noncitizens a year during his first term.  Removal numbers were widely publicized.  Not widely publicized was that more than 95 percent of the persons removed were from Mexico, El Salvador, and other Latin American nations.  The harsh effectiveness of the Obama removal campaign, which devastated Latino families and communities, resulted from the U.S. government’s focus on noncitizens arrested by state and local police, with whom Latinos are disparately targeted due to racial profiling and other practices.

Announcing a “zero tolerance” policy, President Trump has sought to ramp up removals of Mexicans, Salvadorans, Hondurans, Guatemalans, and Haitians, many of whom are poor and seeking asylum in the United States.  This strategy, seen clearly in the administration’s responses to the migrant “caravan” and the Central American mothers and children in 2018, likely will continue to disproportionately affect poor and working class Latinos.

Raids

At various times in U.S. history, the U.S. government has employed raids as a device for enforcement of the immigration laws.   Employers as well as immigrants have been affected.

As Congress debated comprehensive immigration reform, the Bush administration increasingly employed immigration raids in the interior of the United States in an effort to demonstrate the federal government's commitment to immigration enforcement. 

These raids have had racial and class impacts on particular subgroups of immigrant workers, namely low-skilled Latina/o immigrants.

For example, the May 2008 raid of a meatpacking plant in Postville, Iowa, constituted one of the largest raids on undocumented workers at a single site in American history.  In the raid's aftermath, the U.S. government did not simply seek to deport the undocumented, but pursued criminal prosecutions of the workers for immigration and related crimes, such as for identity fraud.  The raid involved a massive show of force that included helicopters, buses, and vans as federal agents surrounded the Agriprocessors plant in Postville, the nation's largest kosher slaughterhouse.  According to news reports, immigration authorities arrested 290 Guatemalan, 93 Mexican, 4 Ukrainian, and 2 Israeli workers. 

President Trump has employed well-publicized workplace raids at 7-11 stores and, more recently, meatpacking and landscaping companies in Ohio.  Those raids specifically targeted workplaces of working class immigrants and Latinos.  We can expect the same types of disparate impacts on Latino working class immigrants as we have seen with past immigration raids.

Detention

Immigration detention has been in the news, with vivid pictures of desperate mothers and children who fled the rampant violence of Central America catching the national imagination.  Ending “catch and release” of noncitizens apprehended in the U.S./Mexico border region, President Trump has used a variety of policies, such as family separation and family detention, in the administration’s efforts to deter Central Americans from coming to the United States to seek asylum – relief for which the law allows them to apply.  As the pictures make clear to the world, poor and working class Latinos are the most directly affected.  Given that the policies are directed at border crossers from Central America, it cannot be denied that the U.S. government is not targeting Latinos in the enforcement efforts.   

Border Enforcement

U.S. border enforcement historically has focused on Latinos, with racial profiling a well-known phenomenon in immigration enforcement.  Immigration enforcement officers often target Latinos for immigration stops.  President Trump has ramped up enforcement in the U.S./Mexico border region, with persons who “look” Latino/o the focus of those efforts.  President Trump’s rhetoric attacking Latinos cannot help but encourage immigration officers to focus on Latinos and to ultimately remove many of them from the United States.

Legal Immigration

The immigration laws through a variety of mechanisms historically have excluded poor and working people of color and continue to do so today.  The Trump administration has sought to make it harder to immigrate lawfully to the United States.  Put differently, he wants to limit legal as well as unauthorized immigration. 

The Trump administration has tightened visa requirements and is promising to do more.   President Trump’s travel ban denies entry into the United States of nationals from a number of predominantly Muslim countries.  In addition, the President has expressed support for the Reforming American Immigration for Strong Employment (RAISE) Act, which would cut immigration by half and redirect migration away from developing nations populated by people of color, including  Mexico, India, and China, the three nations currently sending the most immigrants annually to the United States.   

Conclusion

Race and class continue to permeate U.S. Immigration law and enforcement.  This is especially true in the Trump era.  Indeed, President Trump is focusing on policies that will directly affect working class Latinos. Judging by his incendiary rhetoric attacking Latinos and poor and working people of color generally, the Trump administration seems to have targeted Latinos for immigration enforcement.  For better or worse, my 2009 article analyzing the race and class impacts of immigration enforcement is more relevant today than when I wrote it.

Kevin R. Johnson is Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at the University of California, Davis School of Law.

May 7, 2018

From the Bookshelves: From Extraction to Emancipation: Development Reimagined by Raquel Aldana and Steven W. Bender

by Kevin R. Johnson

 

[Cross-posted from ImmigrationProf Blog]

 

From Extraction to Emancipation: Development Reimagined by Raquel Aldana and Steven W. Bender


Growing out of a site visit to Guatemala in the summer of 2015 and a follow-up conference, Raquel Aldana and Steven Bender, editors, have produced an edited volume that considers Guatemala as a case study to examine broad global themes arising from development practices in emerging economies around the world, including the final theme of migration and development.  The book includes chapters by fourteen scholars from the North and South, including Raquel Aldana, Steven Bender, Karrigan Börk, Julie Davies, Patrícia Ferreira, Lauren Gilbert, Christian Gonzalez, Beto Juarez, Mario Mancilla, Marcia Narine Weldon,  Blake Nordahl,  Mario Peña Chacon, Rachael Salcido and Maria Antonia Tigre. 

 

A significant economic development strategy of emerging economies has involved the promotion of direct foreign investment and trade.  While these practices have promoted steady economic growth, the book offers important lessons to investors and policy makers on strategies to improve distributional justice and respect for the rule of law. A large focus of the book is on enhancing corporate social responsibility, recognizing the unwillingness or inability of failed democracies to regulate industry’s potential ill effects on the environment and people, and in particular indigenous peoples who comprise a significant part of Guatemala’s population and are disproportionately poor. The book also examines such global themes as climate change, labor regimes in the context of trade, and forced migration (mostly from indigenous communities), all of which have transborder implications and across-border commonalities.

 

Part V of the book looks at the phenomena of migration and development. The recent surge of Central American unaccompanied minors and children fleeing with their mothers to the United States made it imperative to confront the human face of migrants whose fates are rooted in the dire reality that the countries from which they flee cannot or will not protect them. Largely, these migrants are escaping violence perpetuated by private actors, at times by gang members or even their own parents or spouses. Their stories of flight cannot be disengaged from the broader context in which the violence occurs. Theirs is also the story of failed nations, characterized by ineptitude, weakness and, even worse, indifference or at times even complicity. This story of failed nations applies beyond the reign of private “rogues” whom everyone agrees are bad actors (gangs, drug traffickers, violent criminals). The other side of the coin is a more nuanced story about the failing role of some of these Central American nations in regulating the acts of corporations, whether owned by the oligarchy or operated by transnational actors.

 

Blake Nordahl’s chapter, for example, narrates Evelia’s story. Evelia, like many other Central American asylum seekers, won her case based on a compelling story of domestic violence. Nordahl’s trip to  Guatemala to study Evelia’s prior life in rural Guatemala, however, revealed to him and to readers a more complex entangled story of privatized violence that includes the historical and modern exploitation of people at the hands of Guatemala’s sugar industry. This carefully documented chapter makes a compelling case to move our own asylum and refugee laws beyond simple stories of  individualized violence and to recognize the so-called “economic refugees” from nations like Guatemala as victims of a structural persecution that also involves collusion between the state and corporations.

 

Lauren Gilbert’s chapter connects Guatemala’s story of migration and violence to both the past and the present— the civil war years to now—and to the licit and illicit actors who exploit them. Her concluding chapter examines the role of gendered violence directed at women in El Salvador, Guatemala, and Honduras both during the political upheavals of the 1980s and 1990s and over the last decade, examining how the failure then to confront gender violence as a form of state-sponsored terrorism led to its role today in contributing to the climate of fear and instability that plagues the region. The gendered violence that propels migration today from the Northern Triangle is connected to this dark yet largely untold history. Today, the levels of violence in these countries match or surpass those during wartime. While today, Northern Triangle states largely blame private actors (e.g., gangs) for the resurgence of violence directed at women, Gilbert’s chapter shows that this new terror cannot be disentangled from these nations’ dark past with gendered state-sponsored violence.

 

In the end, both Nordahl and Gilbert look to international norms as part of the solution. Nordahl acknowledges that permanent solutions to Guatemala’s structural violence are largely a Guatemala project. However, he also documents that for the past twenty years Guatemala’s feeble attempts at land reforms and poverty alleviation through multiple policies have been largely inadequate. Thus, at least for now, Nordahl makes a compelling case that more expansive notions of persecution must be adopted as part of refugee law to recognize economic exploitation as persecution. For her part, Gilbert sees hope in international law’s evolution in recognizing gendered violence, a significant shift from when she worked as a UN Truth Commission lawyer in El Salvador more than twenty-five years ago. This new visibility and naming of gendered violence is an important first step to counter practices, including in the United States, of turning our backs on persecuted women and girls.

 

Download Introductory chapter of book


April 30, 2018

Opinion analysis: Crime-based removal provision is unconstitutionally vague

by Kevin R. Johnson

[Cross-posted from SCOTUSblog]

In the last few years, the Supreme Court has decided a steady number of criminal-removal cases. In light of the Trump administration’s emphasis on the removal of “criminal aliens,” we will likely see even more criminal-removal cases in the future.

Most of the removal cases that have recently come before the court, including Esquivel-Quintana v. Sessions, which was decided last term, have involved ordinary issues of statutory interpretation and deference to administrative agencies. Sessions v. Dimaya, which the court decided today in a 5-4 ruling, is different. The case began as a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been almost wholly immune from judicial review. It was originally argued last term, when the court was short-handed after the death of Justice Antonin Scalia, and the justices ordered reargument, suggesting that they were divided on the merits.

An immigrant convicted of an “aggravated felony” under 8 U.S.C. §1101(a)(43) is subject to mandatory removal and is ineligible for most forms of relief from removal. The definition of “aggravated felony” incorporates by reference 18 U.S.C. §16(b). Section 16(b) defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

A lawful immigrant from the Philippines, James Garcia Dimaya has lived in the United States since 1992. He has two residential burglary convictions, neither of which involved violence. Based on the convictions, the immigration court and the Board of Immigration Appeals ordered Dimaya removed from the United States. The U.S. Court of Appeals for the 9th Circuit overturned the BIA’s order, finding that Section 16(b) was unconstitutionally vague. To reach that conclusion, the court relied on Johnson v. United States, in which the Supreme Court, in a 2015 opinion by Scalia, found that the Armed Career Criminal Act’s similarly worded definition of “violent felony” was so vague as to violate the due process clause.

At oral argument last October, the justices appeared to be divided as to whether this case was distinguishable from Johnson. In the end, that question was at the heart of the disagreement between the majority and dissenting justices.

Relying on Johnson, the court, in an opinion by Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and, in large part, Neil Gorsuch, affirmed the 9th Circuit’s ruling that Section 16(b) is unconstitutionally vague. The court began by noting that to determine whether a person’s conduct falls within the ambit of Section 16(b), “courts use a distinctive form of what we have called the categorical approach.” Rather than assessing whether the particular facts of someone’s conduct pose the substantial risk required under the statute, courts consider the overall nature of the offense, and ask “whether ‘the ordinary case’ of an offense poses the requisite risk.” The court went on to conclude that defining the “ordinary case” under the “crime of violence” provision poses the same vagueness and due process problems, including unpredictability and arbitrariness, as those identified in Johnson. As the court summed it up, “Johnson tells us how to resolve this case.  … [N]one of the minor linguistic disparities in the statutes makes any real difference.”

In a section of the opinion not joined by Gorsuch, a plurality of the court rejected the government’s argument that “a less searching form of the void-for-vagueness doctrine applies here than in Johnson because this is not a criminal case.” Citing the 1951 case Jordan v. DeGeorge, the court noted that “we long ago held that the most exacting vagueness standard should apply to removal cases,” because the penalty of deportation is so severe.

Gorsuch concurred in part and concurred in the judgment. He emphasized at the outset that “[v]ague laws invite arbitrary power.” He defended the originalist foundations for vagueness challenges that Justice Clarence Thomas questioned at length in his dissent, tracing the history of those challenges back to Blackstone’s condemnation of vague statutes and the “tradition of courts refusing to apply vague statutes.” He further noted that the concern with vague statutes was not “confined to the most serious offenses like capital crimes.” Addressing the government’s argument that a more lenient standard of review should apply in civil cases, Gorsuch would have gone even further than the plurality. He suggested that provisions of civil laws should be scrutinized closely for vagueness even outside the deportation context: “Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?”

Chief Justice John Roberts, joined by Justices Anthony Kennedy, Clarence Thomas and Samuel Alito, dissented. Roberts distinguished Johnson, arguing that “the Court too readily dismisses the significant textual distinctions between §16(b) and the ACCA residual clause.” Even under the exacting “standard applicable to criminal laws,” Roberts maintained, “§16(b) is not unconstitutionally vague.” Unlike the ACCA residual clause struck down in Johnson, “[t]he more constrained inquiry required under §16(b)— which asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense—does not itself engender ‘grave uncertainty about how to estimate the risk posed by a crime.’ And the provision’s use of a commonplace substantial risk standard—one not tied to a list of crimes that lack a unifying feature—does not give rise to intolerable ‘uncertainty about how much risk it takes for a crime to qualify.’”

Although he agreed with Roberts’ dissent, Thomas wrote a separate dissent to express “doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause.” He further questioned the “categorical approach” to review of the crime-based statutes, and he would have found that the statute was not unconstitutionally vague as applied to Dimaya.

In the end, the majority dutifully applied its holding in Johnson to the immigration laws. The court’s holding is consistent with its recent decisions applying routine approaches, including traditional methods of interpretation and doctrines of deference to administrative agencies, to judicial review of the immigration laws. What is different about Sessions v. Dimaya is that it applies the Constitution to the removal grounds of the immigration laws. In that sense, it continues what could be seen as a recent movement by the court toward applying ordinary constitutional norms in the immigration context. At the end of last term, for example, the court in Sessions v. Morales-Santana held that gender distinctions favoring women over men in the derivative citizenship provisions violated the Constitution’s equal protection guarantee. It remains to be seen whether and how far the court will proceed along this path.

An earlier version of this post suggested that Kennedy and Alito joined the part of Thomas’ dissent in which he expresses “doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause.” Kennedy and Alito joined Thomas’ dissent as to Parts I-C-2, II-A-1 and II-B, but not as to that statement from Thomas’ second paragraph.

April 8, 2018

King Hall Faculty Perform at Annual Aokirama

On Friday, April 6, UC Davis School of Law professors took the stage during the Aokirama (formerly Cardozorama) law school talent show! The student-organized Aokirama, named for the late Professor Keith Aoki, brings together students (and faculty cameos) for a night of skits, talent, and musical performances. One of the biggest hits of the evening was the band Negotiable Instruments, featuring:

  • Professors Angela "Malice Aforethought" Harris, Anupam "Crime Against Humanity" Chander and Madhavi "Patent Infringement"Sunder (faculty vocalists)
  • Professor Rose "Adverse and Hostile" Cuison Villazor (drums)
  • Professor Cappy "Boycott" White (guitar)
  • Professor Carlton "Treason" Larson (piano)   
  • Guest student vocalist, Tyler "So-Not-a-Gunner" Moran (2L)

Professors Lisa Ikemoto and Irene Joe were on stage, as well as Professor Cuison Villazor's daughters.

View the full performance on YouTube

Several King Hall faculty members attended Aokirama 2018

March 26, 2018

Dean Johnson Files Amici Brief in Ninth Circuit DACA Rescission Appeal

Several immigration law professors, including Dean Kevin R. Johnson, filed an amici curiae brief, in the U.S. Court of Appeals for Ninth Circuit appeal by the Trump administration of a district court injunction barring the rescission of the Deferred Action for Childhood Arrivals policy. 

The amici, in alphabetical order included:

The Ninth Circuit will hear oral arguments in the case in May. Steptoe Johnson LLP was counsel for the professors and filed the brief.

March 5, 2018

Court Tees up Issue of the Constitutionality of Indefinite Immigration Detention for the 9th Circuit

[Cross-posted from SCOTUS Blog]

On February 27, 2018 the Supreme Court decided Jennings v. Rodriguez, a class-action challenge to provisions of the immigration laws allowing for immigrant detention. After hearing oral argument in the case last term, the court asked for further briefing on the constitutionality of the detention of immigrants. At the end of the term, still shorthanded after Justice Antonin Scalia’s death the previous year, the court ordered reargument. With President Donald Trump’s administration promising to increase the use of detention as a form of immigration enforcement, the case has great practical significance.

As discussed in my preview of the argument, two Supreme Court cases decided at the dawn of the new millennium offer contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim refused to disturb a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime. Relying on Zadvydas v. Davis, the U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that, in the words of the appeals court, avoided “a serious constitutional problem” by requiring bond hearings every six months for immigrant detainees.

I noted in my argument analysis that during the reargument, some justices worried that the 9th Circuit had acted more like a legislature than a court in fashioning an injunction requiring bond hearings every six months. Such concerns carried the day.

Justice Samuel Alito wrote for a 5-3 court. (Justice Elena Kagan recused herself, in all likelihood because she was involved in the case while serving as U.S. solicitor general.) Using a textual approach to interpreting the immigration statute, the majority found that nothing in the statute supports the imposition of periodic bond hearings as mandated by the court of appeals. The court held that, because the statute was clear, the 9th Circuit had misapplied the doctrine of constitutional avoidance. Alito emphasized that “a court relying on that canon … must interpret the statute, not rewrite it.”

In Part II of the opinion, not joined by Justices Clarence Thomas and Neil Gorsuch, a plurality of the court found that the statute (8 U.S.C. §§ 1252(b)(9), 1226(c)) did not preclude the court from exercising jurisdiction over the case. Although not engaging in “a comprehensive interpretation” of Section 1252, the plurality suggested that it only applied to individual removal orders. Because the detention is not a part of the U.S. government’s discretionary authority, Section 1226(e), which limits review of discretionary judgments, does not apply.

The court next reiterated the doctrine of constitutional avoidance as a tool of statutory construction. Ultimately, the court found that the 9th Circuit had misapplied the canon “because its interpretations of the three provisions at issue here are implausible.” As the court emphasized, “[s]potting a constitutional issue does not give a court the authority to rewrite a statute as it pleases.”

In Part IV, the court challenged Justice Stephen Breyer’s dissent for “ignoring the statutory language” and asserted that his interpretation of the statute was “implausible.”

In the last part of the opinion, the court remanded the case to the 9th Circuit, instructing it to address the constitutional challenges to the statute in the first instance. In so doing, it raised statutory jurisdictional questions that were not raised by the parties, questioned “whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for  respondents’ claims in light of Wal-Mart Stores, Inc. v. Dukes,” and directed the court of appeals to consider whether a class action is the appropriate tool for resolving due process clams that often are fact-specific.

Thomas, joined by Gorsuch, concurred in all but the jurisdictional part of Alito’s opinion. Thomas read the statute as preventing judicial review “except in a petition for review from a final removal order or in other circumstances not present here.” He went on to conclude that the bar on jurisdiction is constitutional.

Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, dissented, reading portions of his opinion from the bench. Breyer would have applied the doctrine of constitutional avoidance because “the majority’s interpretation of the statute would likely render the statute unconstitutional,” and he addressed the constitutional question in detail. In the course of a thorough review of the cases, Breyer observed that the Supreme Court “generally has not held that bail proceedings are unnecessary. Indeed, it almost always has suggested the contrary.” His conclusion: The decisions “tell us that an interpretation of the statute … would deny bail proceedings where detention is prolonged would likely mean that the statute violates the Constitution.” Breyer also read the statute as requiring “bail proceedings in instances of prolonged detention without doing violence to the statutory language or to the provisions’ basic purposes.” Finally, Breyer disputed the majority’s suggestions that the statute bars review and that the case was inappropriately brought as a class action.

In some respects, the court’s decision in Jennings v. Rodriguez takes us back to the drawing board. After sparring among themselves over two terms, the justices remanded the case to the 9th Circuit to decide a meaty constitutional question — whether indefinite detention of noncitizens without a bond hearing as authorized by the immigration statute is constitutional.