January 11, 2021

Might Chevron deference be reconsidered?

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

Jack Chin for SCOTUSBlog previews Pham v. Guzman Chavez, which will be argued before the Supreme Court on January 11.  Chin writes that "[t]he case, addresses the right of certain noncitizens to be released on bond while they are in the process of removal from the United States. The migrants at issue are a subgroup of a subgroup: those who have previously been ordered removed, and are statutorily subject to swift deportation based on reinstatement of the prior order, but who have a so-called `withholding' claim, which, if granted, prohibits their removal to a particular country under the Convention Against Torture or related U.S. statutes and regulations."

The case raises the deference doctrine of Chevron USA v. Natural Resources Defense Council, which Justice Kennedy observed in Pereira v  Sessions might be due for reconsideration.

January 11, 2021

Columbia Law honors Hong Yen Chang

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

In 2015, more than a century after Hong Yen Chang, a Chinese immigrant who had graduated Columbia Law School, was denied a license to practice law in California because of laws that discriminated against Chinese immigrants, the Supreme Court of California granted him posthumous admission to the bar.  The efforts of UC Davis School of Law students and UC Davis law professor Jack Chin led to the court's decision.  Students in the law school's Asian Pacific American Law Students Association petitioned the court on behalf of Chang, pointing out that the laws that prevented him from practicing as an attorney have been discredited and repealed and asking the court to "right this historic wrong." In "a candid reckoning with a sordid chapter of our state and national history," the court granted Chang posthumous admission to the California bar.

Kimmy Yam for NBC News reported on the latest on the story of Hong Yen Chang.   Columbia has honored Hong Yen Chang.  In December 2020, the law school announced that its Center for Chinese Legal Studies will be named for Chang.  Chang in 1886 was Columbia's first Chinese law graduate.

December 17, 2020

Outstanding faculty scholarship

UC Davis School of Law faculty are trailblazers. Our uniquely "majority-minority faculty" consistently ranks in the top 25 for scholarly impact among all U.S. law schools.

Innovative thinkers whose expertise encompasses the most urgent matters facing our world today, our scholars regularly publish in leading law reviews and journals. They also help put extraordinary recent events into context through books, podcasts, United Nations reports, and opinion pieces in the New York Times and other international media outlets.

With a wealth of members in the prestigious American Law Institute, the law school is at the forefront of law reform. Two more faculty members – Raquel Aldana and Courtney Joslin – were elected to the ALI this year.

READ MORE to find a compilation of recent faculty scholarship. Congratulations to our outstanding faculty!

July 27, 2020

We should applaud the changes to the California bar

By Kevin R. Johnson

[Cross-posted from Daily Journal]

The global pandemic has changed all our lives. And it made the July 2020 administration of the California bar exam – in large venues filled to capacity across the state – a public health impossibility.

After several months of emergency deliberations, uncertainty for recent law graduates, and advocacy by bar applicants, law deans and others, the California Supreme Court announced a reasonable, responsible and creative testing alternative. Read more …

 

June 25, 2020

Immigration decisions in the 2019 Supreme Court term, upcoming cases in the 2020 term

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

The 2019 Term is not quite over, but the Court today decided its final immigration case.

Immigration proved to comprise a significant part of the U.S. Supreme Court's docket for the 2019 Term.  Eight decisions directly or indirectly address immigration issues.  The eight cases are a couple more than the Court's average number of immigration decisions in a Term. 

The case that received the most public attention (and hereherehere) was the Court's surprising rejection of the Trump administration's attempt to rescind the Obama administration's Deferred Action for Childhood Arrivals (DACA) policy The DACA case attracted more attention than almost any immigration case in recent years.  Although the legal issues decided by the Court in the case are relatively narrow, the political repercussions of the decision will shape the future of immigration reform.

The immigration decisions from the 2019 Term, with links to case information from SCOTUSblog, are listed below.  The Court devoted considerable attention to the judicial review of immigration matters and decided those cases in relatively conventional fashion.

1.  DACA

Department of Homeland Security v. Regents of the University of CaliforniaNo. 18-587 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]; Trump v. NAACPNo. 18-588 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]; Wolf v. VidalNo. 18-589 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]

In a decision that surprised some Court watchers, the Court, in an majority opinion authored by Chief Justice John Roberts, held that the Department of Homeland Security’s decision to rescind the DACA policy was arbitrary and capricious in violation of the Administrative Procedure Act (APA). 

Some other aspects of the decision merit attention.  First, as an initial matter, the majority held that there were no jurisdictional hurdles to judicial review of the Trump administration's rescission of DACA.  Second, in Part IV of the the Chief Justice's opinion discussing the Equal Protection challenge to the rescission of DACA, Chief Justice Roberts wrote for only four justices; the plurality concluded that the pleadings did not give rise to facts leading to a reasonable inference that anti-Latina/o animus motivated the decision to rescind DACA.  Finding that the the Equal Protection claim should be allowed to be litigated, Justice Sotomayor did not join that part of the Chief's opinion.

2.  Cross-Border Shooting

Hernandez v. MesaNo. 17-1678 [Arg: 11.12.2019 Trans./Aud.; Decided 2.25.2020]

The Court held that the family of a young Mexican national who was killed by a U.S. border officer in a cross-border shooting, did not have a private right of action to sue.  This case had previously been to the Court and remanded for further consideration by the court of appeals.

Justice Alito, who wrote for the Court, summarized the facts of the case:

"The facts of this tragic case are set forth in our earlier opinion in this matter, Hernández v. Mesa, . . . (2017) (per curiam). Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández's friends who had run onto the United States' side of the culvert. After Hernández, who was also on the United States' side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the other side of the border."

3.  Judicial Review of the Application of Law to Undisputed Facts

Guerrero-Lasprilla v. BarrNo. 18-776 [Arg: 12.9.2019 Trans./Aud.; Decided 3.23.2020]; Ovalles v. BarrNo. 18-1015 [Arg: 12.9.2019 Trans./Aud.; Decided 3.23.2020]

Resolving a split in the circuits, the Court held that the phrase “questions of law” in the Immigration and Nationality Act’s 8 U. S. C. § 1252(a)(2)(D), includes the application of a legal standard to undisputed or established facts.

4.  Judicial Review and Expedited Removal

Department of Homeland Security v. ThuraissigiamNo. 19-161 [Arg: 3.2.2020 Trans./Aud.

The case raised the issue of the constitutionality of expedited removal of noncitizens.  The Trump administration has sought to expand expedited removal, which increased the importance of the Court's resolution of the case.  The issue is whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.  As Kari Hong summarized the issue in the case:

"In Department of Homeland Security v. Thuraissigiam, the government is asking the Supreme Court to uphold a system of limited and narrow judicial review over the expedited removal procedure. In 1996, Congress created the expedited removal process, along with other bare-bones administrative procedures, that privilege speed over process. In expedited review, one front-line immigration officer can make the immediate decision to deport someone without a hearing if that the person is not a citizen and cannot prove that they lived in the United States for the past two years. If the person expresses a fear of persecution, an asylum officer then conducts a `credible fear interview' to assess a potential claim. Only if a `significant possibility' exists that the applicant’s asylum claim would succeed, are they given a full immigration hearing."

A 5-4 Court, in an opinion by Justice Alito, held that, as applied to the case at hand, the expedited removal statute does not does not violate the provision of the U.S. Constitution barring suspension of habeas corpus.  Thuraissigiam, who was apprehended about 25 yards from the U.S./Mexico border after entering the United States without inspection, did not seek release from custody, but an additional opportunity to obtain asylum.  Applying an originalist approach to constitutional interpretation, the majority held that, because it applies to challenges to detention, the Suspension Clause did not apply to this case and that the 1996 immigration reforms barred judicial review of the Thuraissigiam's asylum claim.  The Court also rejected the arguments that Thuraissigiam's due process rights had been violated by the lack of a court hearing on his asylum claims.  In so doing, the majority invoked extreme plenary power cases, including Knauff and Mezei, which the U.S. government will likely find useful in the future in seeking to limit the rights of noncitizens seeking admission into the United States.    

5.  Judicial Review/Torture Convention

Nasrallah v. BarrNo. 18-1432 [Arg: 3.2.2020 Trans./Aud.; Decided 6.1.2020]

The Court held that 8 U. S. C. §§ 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to an order denying relief under the Convention Against Torture, which protects noncitizens from removal to a country where they would likely face torture. Torture Convention claims thus will continue to be subject to judicial review.

6.  Identity Fraud and Federalism

Kansas v. GarciaNo. 17-834 [Arg: 10.16.2019 Trans./Aud.; Decided 3.3.2020

The Court held that federal immigration law did not preempt the Kansas identity fraud statutes under which three undocumented immigrants were convicted  for using another person’s Social Security number on tax-withholding forms submitted to their employers. 

7.  Cancellation of Removal

Barton v. BarrNo. 18-725 [Arg: 11.4.2019 Trans./Aud.; Decided 4.23.2020].

The Court held that, in determining eligibility for cancellation of removal of a lawful permanent resident who commits a crime, an offense listed in 8 U. S. C. § 1182(a)(2) committed during the initial seven years of residence need not be one of the offenses of removal.  Jayesh Rathod for SCOTUSblog reviews the competing views among the justices about the (1) proper interpretation of the immigration statute; and (2) the treatment of eligibility for removal of noncitizens with criminal convictions.  In Rathod's view, Justice Kavanaugh's majority opinion "upholds [a] restrictive reading of [the] immigration statute, limiting relief to noncitizens facing removal."

The Immigrant Legal Resource Center provides this practice advisory on the technical cancellation of removal issues decided by Barton v. Barr.

8.  First Amendment/Immigration Representation

U.S. v. Sineneng-SmithNo. 19-67 [Arg: 2.25.2020 Trans./Aud.; Decided 5.7.2020]. 

The Supreme Court held that the Ninth Circuit abused its discretion in reaching out to decide a question never raised by the respondent (an immigration consultant) -- whether 8 U. S. C. § 1324(a)(1)(A)(iv) (making it unlawful to "encourage[] or induce[] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law) is unconstitutionally overbroad in violation of the First Amendment.  The Court did not address the First Amendment question in its decision.

As summarized by Jack Chin on SCOTUSblog,

The Supreme Court . . . resolved United States v. Sineneng-Smith without reaching the merits of the underlying First Amendment question, instead holding that the . . .  9th Circuit improperly injected the issue into the case. The court sent the case back for reconsideration based on the claims of the parties. Evelyn Sineneng-Smith had been convicted of violating 8 U.S.C. § 1324(a)(1)(A)(4), which prohibits `inducing or encouraging' unauthorized immigration. . . .  After her appeal had been briefed and argued in the 9th Circuit on more prosaic issues, the panel requested briefing on whether the statute was unconstitutionally overbroad, an issue Sineneng-Smith had not raised. . . . The 9th Circuit ultimately reversed the conviction because it found that the statute was overbroad, the ground that the court’s re-argument order had brought into the case. In an opinion by Justice Ruth Bader Ginsburg, a unanimous Supreme Court held today that `the panel’s takeover of the appeal' warranted reversal and remand for reconsideration in light of `the case shaped by the parties.'”

The 2020 Term

At least for now, there do not appear to be any major cases on the Court's docket for the 2020 Term.  The following immigration cases currently are set for consideration in the Supreme Court's 2020 Term:

1.  Relief from Removal

Pereida v. BarrNo. 19-438

This case raises the issue whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.   As described by Amy Howe on SCOTUSblog.

"The question arises in the case of Clemente Pereida, who was convicted in Nebraska of `attempted criminal impersonation,' a misdemeanor for which he was fined $100. The dispute centers on whether the conviction was a `crime of moral turpitude,' which would bar Pereida from applying for relief from deportation. The federal government agreed with Pereida that review should be granted, although it agrees with the U.S. Court of Appeals for the 8th Circuit that Pereida is not eligible for relief from deportation."

2.  Effectiveness of Notice to Appear

Niz-Chavez v. BarrNo. 19-863

This case is a followup to Pereira v. Sessions (2018), which addressed the effectiveness of a notice to appear that fails to comply with the statutory requirements.  The issue in Niz-Chavez is whether, to serve notice in accordance with 8 U.S.C. § 1229(a) and trigger the stop-time rule (the rule that the time stops for satisfying the time requirement for eligibility for relief from removal), the government must serve a specific document that includes all the information identified in Section 1229(a), or whether the government can serve that information in a series of documents issued at the time of its choosing. 

3.  Immigrant Detention and Bond Eligibility 

Albence v. Guzman ChavezNo. 19-897 

The issue in this case is whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226.  As John Elwood explained on SCOTUSblog, the distinction between the two provisions matters because under Section 1226 noncitizens generally have the right to a bond hearing, while the government argues that they do not have that right under Section 1231.

June 19, 2020

DACA, college and university students, and the future of U.S. immigration law

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

 

At the end of the term when the Supreme Court hands down its most controversial rulings, the Supreme Court in a 5-4 decision, with the a majority opinion by Chief Justice John Roberts, rejected the Trump administration’s attempt to dismantle the Obama administration’s Deferred Action for Childhood Arrivals (DACA) policy. The much-anticipated decision promises to have monumental impacts on the lives of hundreds of thousands of young beneficiaries of DACA, including many college and university students. The decision also will deeply influence the future political dynamics surrounding immigrant reform. 

Ultimately, the Supreme Court held that the Trump administration’s effort to rescind DACA, without, among other things, considering the interests of the DACA recipients’ reliance on the policy, was arbitrary and capricious in violation of the Administrative Procedure Act.  

Background

DACA did not emerge on a blank slate.  The policy came on only after years of political activism, ferment, and the repeated failure of Congress to pass comprehensive immigration reform.  One of the central bones of contention in the debate over reform has been whether to provide durable legal status to the approximately eleven million undocumented immigrants living in the United States.  

In lieu of the prolonged failure of Congress to enact immigration reform, the Obama administration in 2012 announced and implemented DACA.  Based on a long history of what is known as deferred action, that policy provided temporary relief from removal from the United States to nearly 800,000 undocumented immigrants, including many high school and college students, who came to the United States as children.  A form of prosecutorial discretion, deferred action exercised by the U.S. government in deciding which noncitizens to prioritize for removal, offers recipients limited protection from removal.

Critics vociferously attacked DACA as an unconstitutional “amnesty” that unlawfully intruded on the power of Congress to determine which noncitizens are subject to removal from the United States.  Despite the harsh criticism, various legal challenges to DACA failed to derail its implementation.

Making aggressive immigration enforcement the cornerstone of his 2016 presidential campaign, Donald J. Trump promised to dismantle DACA.  His threat struck fear in the hearts of beneficiaries of the policy, a fear that grew with the administration’s initial immigration enforcement efforts.  After months of discussion and debate, then-Attorney General Jeff Sessions, on behalf of the Trump administration, later announced the end of the policy. Controversy, protests, and legal challenges followed. 

Several lower courts enjoined the attempt by the Trump administration to end DACA.  From the beginning, many observers knew that the Supreme Court ultimately would determine its fate.  The cases slowly made their way to the Court.

DACA’s Impacts

DACA provided some modicum of relief from removal to hundreds of thousands of young undocumented immigrants.  The relief provided economic benefits to the nation and educational gains to DACA recipients.  Latinx persons comprise close to ninety percent of the DACA recipients; citizens of Mexico, El Salvador, Guatemala, and Honduras accounted for the vast majority of them.   (Four Justices who joined the majority found that in Part IV of the Chief''s opinion that there was insufficient evidence that DACA's rescission was motivated by racial animus: although joining most of Chief Justice Roberts' opinion, Justice Sotomayor did not join Part IV.).

Importantly, DACA recipients received work authorization.  As recipients, they were not subject to the bar on employment that applies to undocumented immigrants.  Work authorization made jobs available to DACA recipients.  That, in turn, made university students eligible for federal work study and other employment.  As a result, work authorization meant that DACA recipients were better able to fund their higher education.  In that respect, DACA promoted higher education for young immigrants.

In the wake of DACA’s implementation, University of California (UC) President Janet Napolitano, who as Secretary of the Department of Homeland Security under President Obama implemented the DACA policy, created the UC Immigrant Legal Services Center, which provides legal assistance to immigrant students and their family members on the ten University of California campuses.   As one of the proponents of the Center, I argued that it could provide invaluable assistance to students who, among other things, were applying for DACA and DACA renewals.  Housed at UC Davis School of Law, the Center represents the recognition by the University of California that many students and parents have immigration-related legal needs that warrant university assistance. 

The UC Immigrant Legal Services Center offers students an extensive set of on-campus legal services—from informational workshops to consultations to direct legal representation in immigration court.  In 2018/19, the Center reported that it opened nearly 1500 cases, consisting of 784 DACA renewal applications, 330 consultations, and 362 other forms of legal services.     Initially funded by UC, the Center now receives funds directly from the California legislature, which has declared California to be a sanctuary for immigrants.  

Undocumented students and DACA recipients can be found on each of the ten University of California system.  Many are undergraduates.  Others attend graduate and professional schools, including Law schools.  In some states, such as California, they are eligible to practice law.  

DACA had other significant ripple effects for immigrants in colleges and universities across the United States.  Indeed, DACA’s political impacts as a practical matter may dwarf the important, but limited, relief provided to its beneficiaries.  Specifically, the policy bolstered a potent grassroots movement seeking to vindicate the rights of immigrants.  With DACA’s future uncertain, some congressional leaders again raised the possibility of comprehensive immigration reform and a DREAM Act, a version of which has been proposed for roughly two decades and would afford a path to legalization for young undocumented college and university students.  An organized effort even emerged calling for the full-blown abolition of ICE, which in some ways mirrors the current calls to defund the police.  

DACA recipients are politically active on university campuses.  They prod universities to protect immigrants. University leaders, who often steer clear of controversial political debates, criticized the rescission of DACA, and its adverse impacts on students.   Not that long ago, colleges and universities did not broadcast the enrollment of undocumented students, fearful of a political outcry if their presence became common knowledge.  But politics have changed.  DACA recipients and immigrants generally are provided increasing protections by state and local governments from aggressive U.S. immigration enforcement.  Some advocates today contend that colleges and universities should be “sanctuaries” for immigrant students subject to the Trump administration’s aggressive immigration enforcement tactics.  

The University of California and many others filed lawsuits challenging the rescission of DACA.  165 colleges and universities filed a friend-of-the court brief in the Supreme Court opposing rescission and supporting the legal challenge to DACA’s dismantling.  

In the end, DACA emerged as representing something much more than the mere extension of a limited form of relief to young undocumented immigrants.  It today is nothing less than a lightning rod in the contemporary debate over immigration reform.  DACA recipients and their allies demand nothing less than simple justice for immigrants.

The Supreme Court

From the beginning, Supreme Court observers recognized that the justices likely would be divided about the lawfulness of the Trump administration’s attempt to end DACA.  A 5-4 Supreme Court found that the Trump administration’s decision to rescind DACA was arbitrary and capricious and sent it back for further consideration.  The Court did not decide the lawfulness of DACA and all seemed to agree that, if proper procedures were followed, the President could put an end to DACA.  However, in many respects, the majority’s reasoning mirrored the Court’s reasoning last year in holding that the Trump administration had not provided an adequate reason for including a question on U.S. citizenship on the 2020 Census.   The administration ultimately abandoned the citizenship question.  We will need to wait to see what the administration will do with the rescission of DACA sent back to it for reconsideration.

June 1, 2020

The Meaning of DACA

By Kevin R. Johnson, Michael A. Olivas, and Shoba Sivaprasad Wadhia

[Cross-posted from ImmigrationProf Blog]

The Supreme Court will soon release an opinion on the lawfulness of the Trump administration’s choice to end DACA or Deferred Action for Childhood Arrivals (DACA). Former President Barack Obama rolled out DACA in June 2012 and the Department of Homeland Security implemented it two months later through a memorandum signed by then-Secretary Janet Napolitano.

DACA, based on a conventional concept of prosecutorial discretion, provided limited relief from removal – and work authorization -- to nearly 800,000 young undocumented immigrants through a discretionary tool called “deferred action.” All legal challenges to DACA, including one by campus immigration hawk former Maricopa County (Arizona) Sheriff Joe Arpaio, failed. How will the story of DACA be remembered? 

Much more than the sum of its parts, DACA will be remembered as an intriguing political story. For years, Congress introduced legislation known as the DREAM Act to provide legal status and a pathway to permanent residency for young undocumented college students. Congress has debated some kind of comprehensive immigration reform over two decades. All of these efforts failed. Said President Obama in announcing DACA “In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places.” DACA helped jump start the forceful movement across the nation calling for the vindication of the rights of immigrants.

Politics led to DACA’s demise. Donald J. Trump ran for President on a strident immigration enforcement ticket and promised to end the “unconstitutional” DACA policy. After the inauguration of President Trump and lobbying by some Republican leaders to keep DACA, the administration tried to terminate DACA and announced this “wind-down” in a press conference on September 5, 2017. Ultimately, political slogans, not reasoned analysis, were offered for the decision to end DACA.

The Trump administration’s arguments to the Supreme Court defending the end of DACA were also mired in politics. In a convoluted fashion that wended its way to federal appellate courts from coast to coast, the administration—through a series of Interim leaders—simply ignored the requirements of the Administrative Procedure Act and in an arbitrary and capricious way simply declared that DACA was “illegal,” and that they were required to end it.

The claim that DACA was somehow “illegal” was simply not true. No court found it to be, and for good reason. Deferred action is an instrument of discretion used to shield “low priority” immigrants from deportation. Deferred action enjoys a long history and legal foundation across both Republican and Democratic administrations. The administration could decide to end the policy it, but not by undertaking the judicial role of declaring their own exercise of discretion to be unconstitutional. As it did in the Department of Commerce v. New York (2019) in manufacturing a civil rights rationale for a U.S. citizenship question on the 2020 Census that would have chilled the participation of many Latina/os and immigrants, the administration simply misrepresented facts. The Supreme Court should require the Department of Homeland Security to undertake the searching analysis of facts and policy impacts, and honestly proceed, playing by the rules. Those with DACA have upheld their part of this bargain, and the administration must abide by open and fair procedures required by the law.

DACA will be reminisced as a story about human pain and hope. Said one DACA recipient one author spoke to described September 5, 2017, the day the end of DACA was announced as “just an awful day … Eventually you just get over the pain, get over the fear… and you continue to organize and protect your community in whatever way you can.” Throughout the time DACA has been tossed around in the courts, thousands continue to build families of their own, work in the frontlines of healthcare. and revitalize classrooms in colleges and universities across the country, a phenomenon we have seen first-hand as educators and administrators. DACAmented recipients are now our doctors, lawyers, and schoolteachers, repaying the investment this country has made in them.

If the Supreme Court fails to require the Trump administration to abide by the law, as we urge the Court to insist upon, those with DACA must live under a cruel Sword of Damocles, with no clear pathway to legal permanent residency. They deserve an honest policy determination, and the Supreme Court should insist on no less. Ultimately, it will take Congressional action to enact a DREAM Act, and comprehensive immigration reform to enable these young members a means to their rightful place in our society.  

-----

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

Michael A. Olivas is William B. Bates Distinguished Chair of Law, Emeritus, at the University of Houston Law Center and the author of Perchance to DREAM: A Legal and Political History of The DREAM Act and DACA.

Shoba Sivaprasad Wadhia is Samuel Weiss Faculty Scholar, Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law in University Park, and the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases and Banned: Immigration Enforcement in the Time of Trump.

December 16, 2019

Top 10 Immigration Stories of 2019

[Cross-posted from ImmigrationProf Blog]

By Kevin Johnson

2019 had many big immigration stories.  The big news at the ImmigrationProf blog was the addition of a new superstar blogger.  Welcome Professor Ming Hsu Chen to the ImmigrationProf Blog!

If one is looking simply at changes to U.S. immigration law and policy, the biggest immigration news story of 2019 (like 2017 and 2018) unquestionably was President Donald Trump.  He probably has been the biggest immigration news story since his inauguration in January 2017.  For better or worse, no modern U.S. President has made immigration the priority that Trump has day in and day out.  President Trump is a virtually endless source of immigration comments, insults, tweets, and policy initiatives.   Law professors are indebted to the President for providing fodder for law review articles for many years to come. 

In addition to President Trump, here are my Top 10 Immigration News Stories from 2019, followed with some awards. 

1.  Immigration in the Supreme Court

A wide array of immigration cases continue to make their way to the Supreme Court.  The biggest immigration case of the 2019 Term will decide the future of President Obama's Deferred Action for Childhood Arrivals (DACA) policy.  In November, the Court heard oral arguments in three consolidated DACA cases in which the lower courts enjoined the Trump administration’s attempted rescission of DACA.  See the Argument Recap in DACA Cases.   A ruling in the case is expected at the end of the Term in June.  I predict a 5-4 vote.  Expect fireworks whatever the outcome.  Stay tuned!

The high Court has before it a full array of immigration issues, including the availability of damages for cross-border shootings, judicial review of a variety of immigration decisions, federal versus state power over immigration, the legality of expedited removal, and more.  For an overview of the Supreme Court's 2019 Term immigration docket, see Immigration in the Supreme Court, 2019 Term: DACA, Judicial Review, Federalism, Etc.

In a blockbuster decision at the end of the last Term in June, the Supreme Court by a 5-4 vote held that the Department of Commerce had provided unconvincing reasoning for adding a question on U.S. citizenship to the 2020 Census.  The Trump administration had made the addition of a citizenship question a high priority.   Joining the liberal justices, Chief Justice John Roberts wrote for the majority.  For an explanation of why he sided with the liberals, see Department of Commerce v. New York: Why the Supreme Court asked for an explanation of the 2020 census citizenship question.  Many Court watchers were surprised by the outcome of the Census case.  To add to the surprises, the Trump administration announced a few weeks after the decision that it was throwing in the towel on the citizenship question; consequently, the 2020 Census will not have a citizenship question.

2.  Turnover in DHS Leadership

2019 saw a game of musical chairs in the office of the Secretary of the Department of Homeland Security.  In April, Kirstjen Nielsen, rumored to be on the outs with President Trump, stepped down.  See Former Department of Homeland Secretary Kirstjen Nielsen Explains Resignation.  Next, the Acting DHS Secretary, Kevin McAleenan, resigned.  See Breaking News: Acting DHS Secretary McAleenan Resigns. He was replaced by another Acting Secretary, Chad Wolf, who at least for now remains in the position.

3.  William Barr Replaces Jeff Sessions as Attorney General

Who is the smiling man in the picture above?  He is the current Attorney General of the United States,  Judging from the picture, the current administration makes him happy.

In February, William Barr was sworn in as Attorney General.  He replaced Jeff Sessions, who had made enforcement of the U.S. immigration laws a high priority.  President Trump had reportedly lost confidence in Sessions.  Barr previously served as Attorney General under President George W. Bush.

The Attorney General, of course, heads the Department of Justice, which houses the Executive Office of Immigration Review (the home of the immigration courts and Board of Immigration Appeals (BIA)). 

Like Attorney General Sessions, Barr has intervened in cases before the BIA to narrow relief for removal.  See, e.g., L-E-A-, 27 I. & N. Dec. 581 (AG July 29, 2019) (narrowing "membership in a particular social group" for purposes of asylum).  Put simply, do not expect any slowing down of immigration enforcement under Attorney General Barr.  

4.  Flores Settlement

The Flores settlement, agreed to by the U.S. government under President Clinton in 1997, governs the detention of migrant children and generally bars minors from lengthy and indefinite immigrant detention. The settlement made the news regularly in 2019. A short and sweet summary of the Flores settlement can be found at The Conversation: A Short Explanation of the Flores Settlement and Its Possible Demise. 

 

Throughout 2019, President Trump continued his effort to abrogate the Flores settlement. He has sought to detain migrant children, and all other migrants, indefinitely while their cases move forward in the immigration courts.  Judge Dolly Gee, who is monitoring the Flores settlement, rejected the latest effort to end the settlement.  See Federal Court Rejects Trump Administration's Effort to End Flores Settlement; Ninth Circuit Rejects Trump Administration's Latest Challenge to Flores Settlement, Holds that Soap, Toothbrushes, and Toothpaste Cannot Be Denied Migrants.

 

The bottom line:  The Flores settlement remains in place and no doubt will be in the news in 2020 as the Trump administration continues to utilize detention in its immigration enforcement efforts. 


5. Public Charge and Other Trump Immigration Policy Initiatives

The Trump administration continued to press forward with new immigration enforcement efforts.  There are literally too many to list all of the Trump immigration initiatives.  But here are a few.

The Trump administration proposed a new, stricter approach to the public charge exclusion under the immigration laws.  The proposed rule has been criticized for making it too tough on immigrants of low- and moderate-incomes to come, or stay in, the United States.  The Ninth Circuit -- and later the Fourth Circuit -- stayed a nationwide injunction barring implementation of the proposed rule.  See Ninth Circuit Stays Injunction of Trump Public Charge Rule; The Nationwide Injunction in the Public Charge Case; Breaking news: public charge rule enjoined.

The Trump administration's  Remain  in Mexico policy, a novel approach that makes asylum-seekers wait in Mexico for their claims to be decided, remains in place and is controversial as ever.  

This year, the administration entered into agreements with El Salvador, Guatemala, and Honduras in an attempt to  better manage the flow of asylum seekers to the United States and deny relief to migrants who failed to seek asylum in countries on their way to the United States.  See DHS FACT SHEET: DHS AGREEMENTS WITH GUATEMALA, HONDURAS, AND EL SALVADOR.

Departing from the practice during the Obama administration, the Trump administration has used immigration raids as an immigration enforcement tool.  During the summer, the President threatened to direct Immigration & Customes Enforcement to conduct mass immigration raids in cities across the country.  The threat struck fear in communities from coast to coast.  In August, the Trump administration on the first day of school conducted immigration raids at food processing plants in Mississippi.  Many children came home from school unable to find their parents.  See ICE Raids in Mississippi, 680 Arrested.

 In November, news reports made the rounds that senior White House aide Stephen Miller had promoted white supremacist, anti-immigrant articles in emails to Breitbart.  Miller has been said to be the architect of the Trump administration's immigration policies. 

In April, there were rumors that President Trump was considering the possibility of completely closing the US/Mexico border.  Business interests raised concerns.  Such a measure would dramatically affect trade as well as migration between the two neighboring nations.  In the end, the President never followed through on the threat to close the border.  See Trump backs off threat to close the U.S.-Mexico border.

The state of California continues to resist the Trump administration's immigration enforcement efforts.  In April, the U.S. Court of Appeals for the Ninth Circuit rejected most of the administration's challenges to California's sanctuary laws, which sought to distance the state from federal immigration enforcement.  President Trump and others in his administration continue to rail against the public safety risks caused by sanctuary cities.  See Ninth Circuit Rejects Bulk of Trump Administration's Challenge to California "Sanctuary" Laws.

6.  Immigration Court Backlog Hits One Million

In September 2019, the backlog of cases in the U.S. immigration courts' surpassed one million.  The enormous backlog affects every noncitizen with a hearing in the immigration courts, their attorneys, and the immigration judges.  The Trump administration's aggressive enforcement efforts contributed to the rapid growth of the backlog.   Noncitizens seeking relief from removal can expect long -- years in some insttances -- waits for a hearing. 


7.  President Trump Lowers Refugee Admissions

It has been said that  the world is experiencing a global refugee crisis.  Still, President Trump again decreased the number of refugee admissions.  See Presidential Determination on Refugee Admissions for Fiscal Year 2020; Trump administration sets lowest cap on refugee admissions in four decades. Again.  On November 1, President Trump released the Presidential Determination on Refugee Admissions for Fiscal Year 2020.  It provides for "[t]he admission of up to 18,000 refugees to the United States during Fiscal Year 2020 . . . ."  (emphasis added).  Criticism followed the announcement.  In 2016, President Obama had capped refugee admissions at 85,000.

8.  Immigrants and Impeachment

As the nation well knows, Congress has been considering the impeachment of President Trump.   Over the last few months, Democrats and Republicans have regularly and literally been screaming at each other about impeachment.  In stark contrast, several key immigrant witnesses in the impeachment hearings kept their heads for the good of the nation.

 

In hearings on the impeachment  in November, immigrants played a vital role Ambassador Marie Yovanovitch is the child of immigrants who fled the Soviet Union and later the Nazi occupation of Europe. Born in Canada, she grew up in Connecticut and became a naturalized U.S. citizen.  Born in Ukraine when it was part of the USSR, Lt. Colonel Alexander Vindman and his family fled to the United States. He joined the U.S. Army, earning numerous commendations including a Purple Heart for wounds suffered in combat in Iraq. Vindman is the Director for European Affairs on the National Security Council (NSC).  Fiona Hill, who until recently served in a senior position on the NSC, opened her testimony by describing herself as “American by choice.” Born in a hardscrabble coal mining town in Northern England, Hill came to the United States, attended Harvard, and became a citizen.  All of the immigrant witnesses left enduring competent impressions and important testimony.


9.  The Retirement of Professor Michael Olivas

One of the leading immigration scholars of his generation, Michael Olivas of the University of Houston Law Center, has retired from law teaching.   Here is a Guest Post: Celebrating Michael Olivas's Retirement

At the January 2019 annual meeting, the Association of American Law Schools honored Olivas with a lifetime achievement award.  See Immigration Law Values Program, Michael Olivas Honored

In 2010, Olivas was the ImmigrationProf blog's Outstanding Immigration Professor of the Year.   A mentor to countless law professors, myself included, Olivas is an esteemed immigration scholar (as well as a renouwned scholar in higher education, civil rights, and other areas) . For a review of his body of work, see Law Professor and Accidental Historian:  The Scholarship of Michael A. Olivas (Ediberto Roman ed., 2017).

Be on the lookout next June for Olivas' latest book on the DREAM Act and DACA.

10.  25th Anniversary of Proposition 187

Contrary to popular belief, California, which produced two Republic Presidents in the twentieth centiry (Richard Nixon and Ronald Reagan), was not always a sanctuary state and liberal haven.  Far from it.  In 1994, California voters passed the anti-immigrant milestone known as Proposition 187, which would have barred undocumented children from the public schools and stripped undocumented immigrants of virtually all non-emergency public benefits.  A federal court enjoined most of the initiative from going into effect.  Nonetheless, Proposition 187 prodded Congress in 1996 to pass two major pieces of tough immigration reform and and to eliminate immigrant eligibility for major public benefits program in welfare reform.

Times have changed and, in response to the Trump administration's immigration initiatives, California has declared itself to be a sanctuary state.  By spurring naturalization and increasing Latinx voter turnout, Proposition 187 contributed to the political transformation of the state and the ascendancy to dominance of the Democratic Party.  For analysis of Proposition 187 and its legacy, see

UC Davis Law Review Symposium: The 25th Anniversary of Proposition 187: Challenges and Opportunities for Immigrant Integration and Political Identity in California  Be on the lookout for the symposium issue from this conference, which will be available in spring 2020.

DACA, Proposition 187, and the legacy of the Trump immigration enforcement revolution

25 Years After The Passage of California's Proposition 187: The Beginning of the Political Transformation of California

 Honorable Mention

There are many other big immigration stories in 2019.  Here are a few worthy of note:

1.  An Immigrant "Invasion": Words Used by Members of Congress as well as the President and the El Paso Shooter (August):  A sniper, who in an online rant had railed about the "Hispanic invasion," targeted -- and killed -- Latinx people at a shopping center in El Paso. 

2.  News from the US/Mexico Border: JURY ACQUITS NO MORE DEATHS VOLUNTEER OF FELONY HARBORING CHARGES (November):  The Trump administration loses a criminal prosecution of a humanitarian worker seeking to save migrant lives.  One can only wonder whether there were better types of cases for the U.S. government to prosecute.

3.  Death on the Border: NPR report: When Migrants Die, Many Bodies Remain Unidentified:  This is not really a news story.  In fact, deaths have been a fact of life for decades along the US/Mexico border.  I include it here lest we forget that migrantse regularly are dying while trying to make it to the United States.  This is a tragic impact of the nation's immigration enforcement policies that seems to not have penetrated the nation's consciousness.

4. Inaugural Issue of AILA Law Journal (Apr. 28):  The new American Immigration Lawyers Association Journal focuses on cutting edge immigration law issues.

 5.  Fox Apologizes for Graphic: "Trump Cuts U.S. Aid to 3 Mexican Countries" (Apr. 4):  No this is not a late April Fool's Day joke.  You can't make this stuff up.  The show "Fox & Friends" reported news of President Trump's plans to reduce millions of dollars in aid to three Central American countries for not doing enough to stem the stream of migrants to the United States.  As one commentator talked about the president “going full-court press on Mexico” and the co-host spoke of “cutting payments, aid payments, to El Salvador, Guatemala and Honduras,” a caption read "Trump Cuts U.S. Aid to 3 Mexican countries.”  This, of course, is a sad reflection on the state of education in the United States.

Immigration Article of the Year

The Interior Structure of Immigration Enforcement by Eisha Jain, 167 University of Pennsylvania Law Review 1463 (2019).  This article is a deep dive into immigration enforcement, going well beyond removals. It calls for restructuring immigration enforcement to consider the full impact of enforcement in light of the impacts of the immigrants present in the United States.

Honorable Mention: Self-Deportation Nation by K-Sue Park, 132 Harvard Law Review 1878 (2019).  Besides writing an incredible article, Professor Park should be praised for convincing the editors of the venerable Harvard Law Review to publish an immigration article.  The article analyzes the long history of self deportation policies in the United States.

Honorable Mention: Immigration Litigation in the Time of Trump by Shoba Sivaprasad Wadhia.  How did Shoba keep up with all the challenges to Trump’s immigration policies?

Book of the Year

Ghosts of Gold Mountain: On the Chinese Immigrants Who Built the Transcontinental Railroad by Gordon H. Chang (2019).  A groundbreaking history of the Chinese workers who built the Transcontinental Railroad, helping to forge modern America only to disappear into the shadows of history. I loved reading this book while vacationing in the Sierras, not far from where the Chinese workers once toiled on the railroad.  

 

Honorable Mention: America for Americans: A History of Xenophobia in the United States by Erika Lee (2019).  The time is perfect for reading a book on the history of xenophobia in the United States.  Will a supplement and pocket part be necessary?

Honorable MentionMigrating to Prison: America’s Obsession with Locking Up Immigrants by César Cuauhtémoc García Hernández (2019).  After the events of the last few years, the entire nation should be considering the morality and policy-sense of mass immigrant detention.  Cesar Garcia's book offers critical analysis on "America's Obsession" with immigrant detention.

Immigrant Sportsman of the Year

José de Jesús Rodríguez Martínez, a professional golfer, currently plays on the PGA Tour.  He grew up in poverty in Irapuato, Mexico. At age 12, he dropped out of school and began caddying full-time at Club de Golf Santa Margarita. At age 15, Rodríguez crossed the Rio Grande and entered the United States. He worked in the United States for a decade, mostly as part of the maintenance crew at a country club in Fayetteville, Arkansas. Rodriguez then became a pro golfer.  See ‘The most unbelievable story in golf’: A treacherous border crossing was just the beginning of José de Jesús Rodríguez’s journey to the PGA Tour.  The Golf Channel is working on a documentary about Jose Rodriguez.


Photo of the Year

I could not resist ending the year without recognizing this photograph:

The photo was posted on March 3, 2019 in the post A Sign of the Times: Arkansas church sign -- ‘heaven has strict immigration laws, hell has open borders'.  

In April, the photo that showed the world the cruelty of the Trump administration's family separation policy, was honored with the World Photo of the Year Award.  See "Crying Girl on the Border" Wins World Photo of the Year Award.  This photo helped fuel the public outcry against family separation and led to the policy's demise.

Film Landmark

2019 marked the 35th anniversary of the classic refugee film El Norte.  The film tells the powerful story of a young Guatemalan brother and ister who fled the war-torn nation and journeyed to the United States.  It is a true classic.  Sadly, El Norte remains topical today as Central Americans continue to come to the United States seeking asylum from violence in their homelands.

November 12, 2019

DACA, Proposition 187, and the legacy of the Trump immigration enforcement revolution

[Cross-posted from CalMatters]

By Kevin Johnson

The Trump administration has implemented unprecedented immigration enforcement policies, prompting challenges from state governments, advocacy groups and the University of California. 

On Tuesday, the U.S. Supreme Court will hear oral arguments in three cases in which the University of California and others are challenging the Trump administration’s termination of the Deferred Action for Childhood Arrivals policy

The case will determine whether hundreds of thousands of young undocumented immigrants can stay in the country. The policy and ones like it regarding immigration could shape national politics for years to come, as Proposition 187 has shaped California politics.

DACA was the brainchild of Janet Napolitano, then Obama’s Homeland Security secretary and now UC president. It has allowed 800,000 young undocumented immigrants who came here as children with their parents to remain in the United States with authorization to lawfully work. 

Using conventional prosecutorial discretion in deciding which undocumented immigrants to prioritize for deportation from the United States, the Obama administration through DACA decided not to target for removal law-abiding young people brought to the United States as children. 

In a detailed opinion, the Office of Legal Counsel in the Department of Justice had concluded that DACA was lawful, and no court ever found DACA to be unlawful.  

DACA recipients relied on its relief in making life decisions. They attended colleges and universities, started careers, and began families. Importantly, DACA recipients were able to live without constant fear of removal. 

As a presidential candidate, Donald Trump criticized DACA as unlawful and promised that it would be dismantled. In September 2017, then-Attorney General Jeff Sessions announced the end of DACA. The Trump administration offered virtually no analysis for its claim that DACA was unlawful.

The Supreme Court will address the question whether, because the Trump administration offered little to justify its conclusory claims that DACA violated the law, the decision to rescind DACA is “arbitrary and capricious” in violation of federal administrative law.  

The court’s decision will literally change, for better or worse, the lives of hundreds of thousands of young immigrants.

President Trump has adopted other tough immigration policies, including family separation, mass detention, building a wall along the U.S.-Mexico border, and a Muslim travel ban. His policies have fueled activism that appears to have staying power.

Ultimately, the Trump immigration revolution might result in the same reaction that occurred after California voters approved Proposition 187, an anti-immigrant initiative that just celebrated its 25th anniversary.

The initiative would have stripped undocumented immigrants of public benefits, kicked them out of public schools, and required police to participate in verifying immigration status of persons with whom they come into contact.  

A federal court stopped most of the initiative from going into effect. But Proposition 187 dramatically transformed the politics of the Golden State. 

Latinx immigrants became U.S. citizens, and voted against the Republican Party that vilified immigrants. As new Latinx citizens became new Democratic voters, the Legislature became solidly Democratic and increasingly racially diverse, and consistently passes laws that protect immigrants, including declaring California to be a “sanctuary” for immigrants.

Some political responses to the Trump immigration initiatives resemble those experienced in post-Proposition 187 California. Naturalization rates are going up among Latinx immigrants.  Naturalized citizens are voting. 

The outcome of the DACA case being argued on Tuesday will determine the fate of hundreds of thousands of young people. But if DACA is ultimately eliminated, the long-term reaction to the Trump immigration approach could be far reaching.

Protestors have marched in support of DACA recipients. The University of California declared it would not provide names of DACA students to the government. The DACA showdown could be the next Proposition 187, this time on a national stage.

September 16, 2019

Some Thoughts on Sept. 11, 2001, and the Role of the Courts in Enforcing the Rule of Law

[Cross-posted from ImmigProfBlog]

By Kevin R. Johnson

Earlier this week, the Milton L. Schwartz/David F. Levi Inn of Court held its first meeting of the academic year at UC Davis School of Law.  Because the meeting was on the anniversary of Sept. 11, 2001, Judge Emily Vasquez asked me to offer some remarks on the impact of September 11 on the law.  Here are my remarks:

September 11, 2001. The words alone bring forth many images and emotions. The morning saw one of those rare events where people look back and think about where they were when they heard the news. It is hard to ever forget the television footage of the jet crashing into the World Trade Center. Closer to home, I will never forget the Sikh owners of the local 7/11 store who plastered American flags on the store windows, basically trying to convince people that they were not Muslim. This simple act spoke volumes about the tension in the air.

For a long while, some said that “9/11 changed everything.” That, I think, is an exaggeration. However, the events did have significant reverberations. Airplane travel became very different — forever. Armed National Guard members immediately were at California airports. Waiting in long lines for screening at airports became common. "Interacting" with TSA officers became a normal part of the airport experience.

The days that followed saw a blur of government responses. I think it fair to say that some people today have regrets about various missteps in the name of security. Some examples might include

1.    The treatment of Arabs and Muslims – many now think that “special registration” of Arab and Muslim men was unnecessary. Similarly, the mass dragnet and detention of young Arab and Muslim men is not generally looked on as one of the nation’s best moments.

2.    The use of Guantánamo and torture have been roundly condemned.

3.    The USA PATRIOT Act and its intrusion on privacy and individual rights has drawn criticism.

On the positive side of the ledger, the nation saw the inspirational rebuilding of the World Trade Center area, with a memorial and museum. The response reflects the resilience of the people of the United States. Who doesn’t like a good comeback story? In the film world, aren’t we on something like Rocky 13?

All that said, September 11 and security concerns remain with us and influence law and policy. But the courts – and this is the upbeat portion of my remarks – have stepped up. Consider the travel bans put into place by President Trump, which applied to noncitizens from a group of countries with predominantly Muslim populations. There actually were three bans, with the first one put into place in January 2018. The bans were rooted in the same fears that influenced the responses to September 11. Some claimed that they were anti-Muslim.

In the first version, it was not clear whether the ban applied to lawful permanent residents or only to temporary visitors to the United States. Nothing less than chaos resulted at airports from coast to coast. I am proud that UC Davis School of Law had students, alumni, and faculty head to airports to help noncitizens seeking admission into the United States. We even had a law professor who happened to be in New York City and went out to John F. Kennedy International Airport to help people in need. I can’t help but think that some of the willingness of people to help persons affected by the travel ban comes from remembering the injustice of some of the U.S. government’s responses to September 11.

The courts played a critically important role in narrowing the three bans, invalidating the first two. We might debate whether the final one was lawful. However, few would say that the final ban’s lawfulness is not a much closer question than the first one. Through judicial review, the courts in effect narrowed the ban.

In Trump v. Hawaii, the Supreme Court upheld the travel ban after engaging in judicial review of its lawfulness. Even though the Court only engaged in rational basis review, that itself is more than once was the case.  In the not-too-distant past, the courts have not even engaged in any review of immigration and national security decisions of the president and Congress. In addition, the Court finally overruled Korematsu v. United States, the case upholding the internment of persons of Japanese ancestry, citizens and noncitizens alike – a national blemish if there ever was one.

This leads me to a more general lesson as we work through challenging times. Time and again in recent years, the nation has seen courts enforcing the rule of law in these and other areas:

  • The rights of “enemy combatants”
  • Sanctuary litigation
  • Immigrant detention
  • Enforcement of the Flores settlement and protecting the rights of migrant children
  • Asylum policies
  • The litigation over the decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy. This issue is currently before the Supreme Court.

The courts enforcing the rule of law include a conservative Supreme Court. Consider Sessions v. Dimaya (2018) in which a 5-4 Court held that a removal provision of the immigration laws was unconstitutional, an extraordinarily rare occurrence. In another case that surprised many Supreme Court watchers, a 5-4 Court in 2019 found that the Trump administration had not adequately explained its addition of a U.S. citizenship question on Census 2020. In my view, Chief Justice Roberts, who wrote for the majority, joined the more liberal justices to save the Court’s legitimacy as an institution separate from the political process.

Ultimately, my firm sense is that we have learned much from September 11. And I remain inspired by the role of the courts in enforcing the rule of law on national security matters. We all should be proud of that.