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October 4, 2017

Argument analysis: Justices seem primed to find constitutional limits on the detention of immigrants

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

Yesterday, the Supreme Court heard reargument in Jennings v. Rodriguez, a class-action constitutional challenge to a variety of provisions of the immigration laws allowing for immigrant detention. After the oral argument last term, the court asked for further briefing on the constitutionality of the detention of immigrants. With the Trump administration promising to increase the use of detention as a form of immigration enforcement, the case has taken on increasing practical significance since the court first decided to review the case in June of 2016.

As discussed in my preview of the argument, two Supreme Court cases at the dawn of the new millennium offered 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 invoked the "plenary power" doctrine - something exceptional to immigration law and inconsistent with modern constitutional law - to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.

During the oral argument last term, the justices focused on two very different aspects of the case. On the one hand, as even the government seemed to concede, indefinite detention without a hearing is difficult to justify as a matter of constitutional law. At the same time, however, some justices worried that the U.S. Court of Appeals for the 9th Circuit had acted more like a legislature than a court in fashioning an injunction requiring bond hearings every six months. The reargument yesterday focused on similar questions, although several justices expressed alarm at the U.S. government's claim that indefinite detention of immigrants is constitutional.

Deputy Solicitor General Malcom Stewart began for the United States by "stress[ing] the breadth of Congress's constitutional authority to establish the rules under which aliens will be allowed to enter and remain in the United States." Focusing first on noncitizens seeking to enter the U.S., he characterized the respondents' claim as seeking "a constitutional right to be released into this country" during the pendency of their removal proceedings.

Justice Ruth Bader Ginsburg quickly took a poke at the government's case, noting that someone with a credible fear of persecution who is applying for asylum might be able to gain parole into the United States. Justice Sonia Sotomayor got to the crux of the case in short order: "[W]hat other area of law have we permitted a government agent on his or her own, without a neutral party looking at that decision, to detain someone indefinitely?"

Stewart had no response except to say, paraphrasing language in the Cold War case United States ex rel. Knauff v. Shaughnessy, that for "aliens arriving at our shores ... , whatever Congress chooses to give is due process." Sotomayor's incredulous response was blunt: "[T]hat's lawlessness."

Rejecting Stewart's claim that the only alternatives for arriving immigrants are detention or release, Ginsburg pointed out that "there is something in between," and that monitoring devices could be used to keep track of an immigrant released on bond. In response, Stewart invoked Demore v. Kim, and said that due process does not require Congress to use the least restrictive means with respect to detention of immigrants.

Justice Stephen Breyer kept Stewart on the ropes by pointing out the oddity of not giving bond hearings to noncitizens when they are given to "triple ax murderers." Justice Elena Kagan seemed to agree that the detention statute should be read to permit a hearing and possible release.

Stewart then returned to defending the plenary-power doctrine and its Constitution-free-zone for noncitizens seeking admission into the United States. In response to a question from Kagan, he admitted that his argument was premised on the claim that people at the border "have no constitutional rights at all." Armed with hypotheticals like the former law professor she is, Kagan asked whether the government could torture arriving immigrants or subject them to forced labor. Stewart agreed that such treatment would be unconstitutional, but then had a hard time explaining why indefinite detention does not also violate the Constitution.

After getting Stewart to agree that "detention violates due process, if there is an unreasonable delay in that detention," Justice Anthony Kennedy asked whether a six-month rule for a hearing, which the 9th Circuit had adopted, might be appropriate. Along similar lines, Kagan suggested that, for immigrants with ties to the country, years in detention would be problematic. Stewart persisted in his position that years of detention without a bond hearing would be permissible. Kennedy seemed troubled by the apparent inconsistency between Stewart's admission that unreasonably prolonged detention could violate due process and his insistence that arriving immigrants lack constitutional rights.

A former Supreme Court advocate, Chief Justice John Roberts asked Stewart pointedly about a statement in the government's supplemental reply brief that 14 months without a hearing would cause constitutional problems, noting that it "sounds close to a concession."

Justice Samuel Alito inquired about the appropriate remedy if there was a constitutional violation, suggesting that rather than adopting a bright-line rule, the court could employ a multi-factored approach like that used in assessing constitutional speedy-trial claims.

Next up was Ahilan Arulanantham of the American Civil Liberties Union of Southern California, who argued the case for the class of immigrants. He stated at the outset that there are limits on the government's power to detain immigrants, which he said were based in longstanding case law. Ginsburg quickly asked about the 9th Circuit's requirement of a bond hearing every six months, noting that criminal defendants receive an initial bail hearing, with no more required under the Constitution.

Kagan seemed to read Demore v. Kim as allowing for detention, but only for a matter of months. Arulanantham explained that the length of detention of the class members was much longer, in part because, unlike the detainee in Demore, they are opposing their removals and seek to remain in the United States. He emphasized that a significant component of the class was seeking cancellation of removal, which allows successful applicants to remain as lawful permanent residents.

Justice Neil Gorsuch raised some jurisdictional questions based on provisions of the immigration statute (8 U.S.C. §§ 1252(b)(9), (f)(1)) that limit the courts' jurisdiction in immigration cases. Arulanantham said that the government concedes that Section (b)(9), which allows for review of a final removal order, does not apply to detention claims, and that the government had waived any jurisdictional objection based on Section (f)(1). Gorsuch seemed satisfied with these explanations.

Returning to Ginsburg's earlier question about the 9th Circuit's requirement that a bond hearing be conducted every six months, Arulanantham defended the rule, noting that "this Court has never authorized detention without a hearing before a neutral decision-maker, outside of national security, beyond six months." Alito pushed back, asking, "Where does it say six months in the Constitution? Why is it six? Why isn't it seven? Why isn't it five? Why isn't it eight?"

Roberts acknowledged that the constitutional concerns increase with the length of a detention, but still asked Arulanatham to justify that specific time limit. Arulanantham responded by citing government statistics showing that 90 percent of all detention cases under mandatory detention finish in less than six months. Roberts wondered whether habeas or other relief might be a possibility. Returning to this question later, Arulanantham offered statistics showing that final adjudication of a habeas petition takes 19 months in the U.S. Court of Appeals for the 11th Circuit and 14 months in the U.S. Court of Appeals for the 3rd Circuit.

Roberts also suggested that some of the immigrants were in detention for lengthier periods because they were preparing their cases. Pushing back, Arulanantham said in effect that an immigrant should not be penalized for seeking relief. He emphasized that the fact that an immigrant is pursuing relief does not make the person a flight risk.

Alito asked why an immediate bond hearing, as is the rule in criminal cases, was not required. Arulanantham noted that the Supreme Court had rejected that possibility in Demore. Late in the argument, Gorsuch asked about a possible remand to the 9th Circuit to decide first on constitutionality. Arulanantham admitted that could be a possibility but asked what would be gained.

As the reargument made clear, this case raises some fascinating constitutional questions, which now are squarely before the court. The justices seemed primed to find constitutional limits on the detention of immigrants. They seemed less troubled than they had been in the first argument by the six-month period for bond hearings established by the 9th Circuit, with the discussion about the reasonableness of the six-month period seeming to assuage their concerns.

Ultimately, this case offers the Supreme Court the opportunity to address the modern vitality of the plenary-power doctrine and finally decide whether, and if so how, the Constitution applies to arriving aliens. We will likely have to wait a few months longer to find out how the justices resolve that issue, which has significant implications in the immigration-law arena.

October 3, 2017

Argument analysis: Faithful to Scalia, Gorsuch may be deciding vote for immigrant

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

Yesterday, the first day of the October 2017 term, the justices heard oral argument in Sessions v. Dimaya, a void-for-vagueness challenge to a criminal-removal provision of the U.S. immigration laws. As I explained in my preview of the case, the U.S. Court of Appeals for the 9th Circuit had relied on the Supreme Court's opinion in Johnson v. United States to find unconstitutionally vague a provision making a "crime of violence," as defined in the immigration statute's "residual clause," 18 U.S.C. § 16(b), an "aggravated felony" subjecting an immigrant to mandatory removal. In so doing, the court of appeals rejected an immigration court's conclusion that James Garcia Dimaya, neither of whose two burglary convictions involved violence, had been convicted of a "crime of violence" and had to be removed from the United States.

The case was first considered last term, when the court was short-handed following the death of Justice Antonin Scalia. At oral argument last January, the justices seemed willing to test a provision of the immigration statute, a civil statute, even though vagueness challenges have more often been successful with respect to criminal laws. However, they appeared divided as to whether this case is distinguishable from Johnson and whether Section 16(b) is void for vagueness, and they restored the case to their calendar for reargument this fall. Consequently, all eyes were on Scalia's replacement, Justice Neil Gorsuch, yesterday.

This oral argument seemed to have a more definitive direction than the first one. And the tide seemed to favor Dimaya.

Arguing for the United States, Deputy Solicitor General Edwin Kneedler again defended the constitutionality of Section 16(b), as he had in January. He first contended that the vagueness test as applied to an immigration law is not as rigorous as for criminal laws, a contention that Justice Ruth Bader Ginsburg quickly questioned. Justice Sonia Sotomayor asked whether a vague statute might result in arbitrary enforcement, and noted that less than 10 percent of burglaries involve an occupied home, which might be expected to increase the potential for violence. Justice Elena Kagan expressed similar concerns.

Not long into the argument, Gorsuch began active questioning and seemed ready and willing to apply Scalia's opinion in Johnson to this case. In language that Scalia would have loved, Gorsuch noted that the due process clause does not include the criminal/civil distinction embraced by the government: "I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property. It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right of self-incrimination, for example."

On the defensive throughout, Kneedler emphasized that the federal government traditionally has enjoyed broad discretion in the enforcement of the immigration laws.

Ginsburg noted that the government could have sought to remove Dimaya under another provision of the statute, which allows for removal for a conviction of a "crime of moral turpitude." Justice Samuel Alito then questioned whether "crime of moral turpitude" was any less vague than "crime of violence."

Gorsuch asked how far judges should be allowed to go in defining the "ordinary case" under a criminal statute to determine whether it is a "crime of violence" for purposes of Section 16(b). He quipped: "How am I supposed to determine what the ordinary case is? Should I bring in some experts and have an evidentiary hearing?"

Later in the argument, Gorsuch threw Kneedler what might have appeared to be a life preserver, asking whether vagueness doctrine might be "a subspecies of substantive due process." Kneedler said that that indeed was the case. Gorsuch then pounced, saying that the doctrine was more procedural than substantive, because Congress could avoid a vagueness challenge by passing a more specific statute.

Representing Dimaya, E. Joshua Rosenkranz, who also had argued the case last term, defended the 9th Circuit's conclusion that Section 16(b) was unconstitutionally vague. Seeing an ally in Gorsuch, Rosenkranz began as follows: "Justice Gorsuch is right. [Determining a crime of violence] is not a job that Congress can appropriately delegate to the courts and to enforcement officials on the ground."

Rosenkranz argued primarily that the residual clause was unconstitutionally vague under Johnson. When questioned by Alito about how to determine when a civil statute is unconstitutionally vague, Rosenkranz emphasized that the statute at issue is not just any civil statute, but a removal statute. And, he maintained, the Supreme Court said in Jordan v. DeGeorge that vagueness standards apply to deportation statutes.

Rosenkranz discussed the standard for vagueness in civil statutes set forth in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., which dealt with a business licensing ordinance regulating the sale of products that might be used for illicit drugs, and which made it clear that a civil statute with "severe consequences" could be challenged for vagueness. Both Gorsuch and Sotomayor wondered aloud how a court would go about defining "severe consequences." Rosenkranz emphasized that the consequences of removal are unquestionably severe - "banishment" and "exile" - and "on par with a criminal punishment." Alito worried about how to draw the line between "severe" and lesser consequences. Ever the textualist, Gorsuch quickly responded and suggested that the line should be "life, liberty, or property," language found in the due process clause.

Justice Anthony Kennedy asked whether Congress could pass a law allowing an immigrant convicted of a crime to be deported in the discretion of the U.S. attorney general, if he or she determines that the presence of the alien is inconsistent with the best interests of the United States. Rosenkranz said such a statute would be unconstitutionally vague.

In response to a question from Gorsuch, Rosenkranz replied that vagueness analysis involves procedural, not substantive, due process, a proposition with which Alito disagreed.

Ginsburg asked why if, as the Supreme Court has held, "crime of moral turpitude" is not unconstitutionally vague, "crime of violence" would be. After Rosenkranz responded that "moral turpitude" has been delineated over "two centuries' worth of law," Kagan added that "in a crime of moral turpitude, we don't have to consider what the ordinary case is, do we?"

In sum, the oral argument suggests that Dimaya has a fair chance of prevailing in the Supreme Court. Gorsuch, the possible deciding vote in the case, seemed willing to apply Scalia's opinion in Johnson to Dimaya's case - maybe even more faithfully than Scalia himself would have done. And Gorsuch had ready responses to line-drawing and other problems that might arise if the vagueness doctrine were held to invalidate the immigration statute's residual clause.

September 29, 2017

Argument preview: Criminal removal – Is “crime of violence” void for vagueness?

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

Recent years have seen the Supreme Court regularly review criminal immigration cases. That should be no surprise in light of the fact the immigration courts have relied on criminal-removal grounds to remove hundreds of thousands of noncitizens annually from the United States. Sessions v. Dimaya, which will be reargued next week, is another criminal-removal case. However, it is not just any criminal-removal case.

Unlike other recent removal cases decided by the court revolving around the interpretation of the immigration laws - for example, 2017's Esquivel-Quintana v. Sessions, in which the Supreme Court interpreted the statutory phrase "sexual abuse of a minor" for removal purposes - Sessions v. Dimaya involves a constitutional challenge to a provision of the immigration laws allowing for removal of an immigrant convicted of a crime. Those laws historically have been largely immune from judicial review under what is known as the "plenary power" doctrine, originally announced in 1889, in The Chinese Exclusion Case. Although not yet overruling the doctrine, the court has slowly moved away from a hands-off approach to the judicial review of the immigration laws; just last term, in Sessions v. Morales-Santana, it rejected gender distinctions favoring mothers over fathers in the award of derivative citizenship.

The issue in Dimaya is whether, and if so how, the Constitution applies to judicial review of the immigration laws. The court's approach to the question could mean big things for a body of law chock full of nationality, gender and class classifications, many which would be constitutionally suspect if the rights of U.S. citizens were involved.

A noncitizen, including a lawful permanent resident, who is convicted of an "aggravated felony" is subject to mandatory removal. The Immigration and Nationality Act defines "aggravated felonies" expansively, including some misdemeanor as well as felony convictions. Part of that definition includes a "residual clause," 18 U.S.C. §16(b), which 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 course of committing the offense."

A lawful permanent resident, James Garcia Dimaya lawfully immigrated to the United States from the Philippines in 1992. His two burglary convictions did not involve violence. Nonetheless, concluding that the convictions were for "crime[s] of violence," the immigration court and the Board of Immigration Appeals ordered Dimaya removed from the United States. Dimaya appealed the BIA's order to the U.S. Court of Appeals for the 9th Circuit.

Vagueness challenges tend to be limited to criminal laws. However, in 1951, the Supreme Court in Jordan v. DeGeorge found that, because of "the grave nature of deportation," due process requires fair notice of which criminal convictions will result in possible removal. The court went on in Jordan to reject a vagueness challenge to a provision of the immigration laws that authorized removal of an immigrant for "any crime of moral turpitude."

In 2015, while Dimaya's appeal was pending, the court held in Johnson v. United States that the Armed Career Criminal Act's definition of "violent felony" was so vague as to violate due process. Relying on Johnson, the 9th Circuit found that Section 16(b) was unconstitutionally vague and vacated Dimaya's removal order.

Defending the constitutionality of Section 16(b), the U.S. solicitor general contends that the court of appeals erred in applying the due process clause's prohibition of vagueness in criminal statutes to a civil immigration law. The government relies on Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., in which the court stated that it has shown "greater tolerance of enactments with civil rather than criminal penalties." The solicitor general bolsters that argument by claiming, in language echoing the court's plenary-power decisions, that vagueness challenges to the immigration laws are especially inappropriate: "[T]he Executive Branch possesses broad authority in the administration of the immigration laws because of their foreign relations and national security implications." He further argues that, even if subject to a vagueness challenge, Section 16(b) satisfies due process.

Dimaya counters by accusing the federal government of seeking to overrule Jordan "sub silentio" and to fully immunize the immigration removal provisions from vagueness challenges. He further contends that "Jordan is ... consistent with this Court's cases demonstrating that contemporary vagueness standards in criminal cases apply to civil statutes that impose similarly severe consequences." Recent decisions such as Padilla v. Kentucky, in 2009, which expanded the scope of immigrants' Sixth Amendment right to effective assistance of counsel in criminal cases, have acknowledged that removal is a critical part of punishments for immigrants convicted of crimes. Given that background, Dimaya argues that Johnson compels a finding that Section 16(b) is unconstitutionally vague.

Divisions among the justices emerged in the initial argument of the case. However, no justice seemed interested in overruling Jordan's holding that removal provisions are subject to review under due process vagueness standards. Even if the justices were willing to review the constitutionality of Section 16(b), they appeared divided on whether this case is distinguishable from Johnson v. United States and thus whether the statute is void for vagueness. Short-handed after Justice Antonin Scalia's death, the court ordered reargument.

Over more than two centuries, the Supreme Court has not yet firmly established that the Constitution applies (much less how it applies) to the immigration laws. Sessions v. Dimaya, along with Jennings v. Rodriguez, a challenge to the constitutionality of immigrant-detention provisions in the immigration statute that will be reargued the day after Dimaya, offers an opportunity for the court to begin to provide a full answer to this fundamental question.

 

 

September 27, 2017

Argument preview: The constitutionality of mandatory and lengthy immigrant detention without a bond hearing

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

Detention as a tool of immigration enforcement has increased dramatically following immigration reforms enacted in 1996. Two Supreme Court cases at the dawn of the new millennium offered 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 invoked the "plenary power" doctrine - something exceptional to immigration law and inconsistent with modern constitutional law - to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.

How the Supreme Court reconciles these dueling decisions will no doubt determine the outcome in Jennings v. Rodriguez. This case involves the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing and possible release from custody. Relying on Zadvydas v. Davis, the U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that avoided "a serious constitutional problem" by requiring bond hearings every six months for immigrant detainees. The court of appeals further mandated that, in order to continue to detain an immigrant, the government must prove that the noncitizen poses a flight risk or a danger to public safety.

Defending mandatory immigration detention without bond hearings, the U.S. solicitor general challenges the lower court ruling:

Some may believe that the Ninth Circuit's vision of immigration detention is wiser or more humane, while others would disagree. But Congress weighed the interests in controlling the border, protecting the public from criminal aliens, affording individual aliens adequate protections and opportunities for relief and review, and minimizing the adverse foreign-relations impact of U.S. immigration law. The canon of constitutional avoidance is not a tool for courts to comprehensively rewrite those laws and strike a different balance.

The government further contends that judicial review through the filing of writs of habeas corpus by individual noncitizens satisfies any constitutional concerns raised by detention.

In arguing for reversal, the United States relies on Demore v. Kim and enthusiastically invokes the plenary-power doctrine, claiming that the 9th Circuit's ruling "conflicts with this Court's longstanding rule that the political Branches have plenary control over which aliens may physically enter the United States and under what circumstances." The government also cites Shaughnessy v.United States ex rel. Mezei, a Cold War relic from 1953 that law professors love to hate but that nonetheless remains good law. In an outcome difficult to square with modern constitutional law, the court in Mezei denied judicial review of a decision to detain an immigrant indefinitely based on secret evidence.

Defending the injunction entered by the lower court, the class of immigrant detainees contends that due process requires a bond hearing to determine whether the noncitizen is a danger to the public or a flight risk. Focusing on Zadvydas v. Davis, they claim that the Constitution requires a hearing but not a right to release. The class cites a litany of decisions in support of this position, including United States v. Salerno, from 1987 (upholding pretrial detention of criminal defendants only after individualized findings of dangerousness or flight risk at bond hearings); Foucha v. Louisiana, from 1992 (requiring individualized findings of mental illness and dangerousness before civil commitment); and Kansas v. Hendricks, from 1997 (allowing civil commitment of sex offenders after a jury trial). The only distinction between those cases and Jennings, the detainees argue, is that U.S. citizens, not immigrants, were being detained. The class further contends that habeas-corpus review fails to satisfy the due-process concerns implicated by prolonged mandatory detention.

Respondents do not confront the plenary-power doctrine head on; however, the amicus brief of Asian Americans Advancing Justice calls for the overruling of the doctrine, which "belongs in the ash heap of history along other racist doctrines," a reference to the fact that its origins can be traced to 19th-century decisions, such as 1889's Chinese Exclusion Case, in which the Supreme Court upheld laws excluding noncitizens from China.

During oral argument last term, some justices expressed concern that the 9th Circuit had behaved more like a legislature than a court in mandating a bond hearing every six months. Along those lines, Chief Justice John Roberts and others suggested that the case might need to be decided on constitutional grounds.

The court subsequently issued an order requesting supplemental briefing on the constitutionality of provisions of the immigration laws that allow for detention of noncitizens without bond hearings. For the most part, those briefs reinforced the parties' views on the merits. Even after the supplemental briefing, the court apparently needed an additional vote to decide the case. After Justice Neil Gorsuch replaced the late Justice Antonin Scalia, the court ordered reargument.

By holding that the immigration statute permitted a bond hearing at reasonable intervals and possible release from custody, the 9th Circuit sidestepped the serious constitutional concerns presented by the statute. The Supreme Court now must decide whether the court of appeals reasonably construed the statute to avoid the constitutional issues by requiring a periodic hearing and, if not, whether ordinary constitutional rules apply to immigrants in detention.

At oral argument, the justices no doubt will again grapple with the Supreme Court's two warring immigrant-detention decisions, Zadvydas v. Davis and Demore v. Kim. With briefing on the constitutionality of the detention scheme complete, the court is primed to reaffirm the plenary-power doctrine, or modify it to review the constitutionality of the immigrant-detention provisions of the immigration statute.

Whatever the outcome, a decision in the case will have an immediate and significant impact. In a January 2017 executive order, which included numerous immigration-enforcement initiatives, President Donald Trump announced an end to the "catch and release" of immigrants facing removal from the United States. Detention without bond became official immigration-enforcement policy. The court's decision in Jennings v. Rodriguez is therefore likely to bear on the administration's ability to implement its immigrant-detention program.

 

September 19, 2017

The Pardon of Sheriff Joe Arpaio and the Rule of Law

[Cross-posted from Latinx Talk]

By Kevin Johnson

In August 2017, President Trump pardoned former Maricopa County (Arizona) Sheriff Joe Arpaio, who a federal court found guilty of criminal contempt for intentionally violating numerous court orders in a civil rights lawsuit. In so doing, President Trump pardoned a flagrant and repeated violator of Latina/o civil rights and sent a deeply troubling message to the entire nation.

For decades, the controversial sheriff’s law enforcement methods had struck justifiable fear into the hearts of immigrants and U.S. citizens of Mexican ancestry. Years ago, the Department of Justice concluded “that discrimination against Latino persons exists in a wide range of [Maricopa County Sheriff Office (MCSO)] practices.  [It] obtained compelling evidence showing that MCSO deputies routinely stop Latinos at much higher rates than similarly-situated non-Latinos...” Letter from Thomas E. Perez, Assistant Attorney General, to Bill Montgomery, County Attorney, Maricopa County, Dec. 15, 2011.

The conduct of former Sheriff Arpaio is part of a long, if not illustrious, history of discrimination in Arizona. The “Bisbee Deportation” of Mexican workers from the state in 1917 is an infamous civil rights milestone. Unfortunately, discrimination against Latina/os in Arizona remains to this day. The Tucson public schools continue to operate under a consent decree entered in a school desegregation case. A federal court this year found that the state acted with a discriminatory intent in eliminating Mexican American Studies from the public schools and thus violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. A series of immigration enforcement, English only, and other laws — some of them vetoed by the governor, others struck down by courts — targeted Latina/os in the state.

Defeated for re-election in 2016, Sheriff Arpaio had made a name for himself in unabashedly focusing on Latina/os in ostensibly enforcing the U.S. immigration laws. Time and again, he stated unequivocally that he would continue to do just that – despite being ordered by the courts to end the discrimination. Arpaio consistently showed cruelty and insensitivity toward inmates under his legal protection. He, for example, made detainees wear pink underwear and suffer the outdoors in scorching Arizona summer heat. Arpaio forced undocumented immigrants in custody to live in a segregated “tent city” that Arpaio himself bragged was a “concentration camp.”

In 2010, the Arizona legislature passed S.B. 1070, a law that Arpaio championed. Section 2(B) of the law, the “Show Your Papers” provision, generated great fear in the Latina/o community; it gave state and local law enforcement officers carte blanche to question people about their immigration status and to expand the already rampant racial profiling of Latina/os. With anti-Latino sentiment lurking in the background, the Arizona legislature passed S.B. 1070 with little, if any, concern for the civil rights of Latina/os. The U.S. Supreme Court in Arizona v. United States (2012) in large part struck down S.B. 1070 as unconstitutional.

After a trial in 2013 that saw overwhelming evidence of racial discrimination, a federal court in Melendres v. Arpaio found that the Maricopa County Sheriff’s Office led by Arpaio engaged in a pattern and practice of racial profiling of Latinos in criminal and immigration enforcement. However, that was not the basis for Arpaio’s criminal conviction. The contempt charge instead resulted from the court’s finding that Arpaio for years had intentionally violated numerous court orders designed to end the discriminatory practices of the Sheriff’s Office. The court held a trial in 2017 affording Arpaio a chance to rebut the charges that he had failed to end the discrimination and was not in contempt of court orders. He failed and the federal judge found that Arpaio simply refused to comply with the court orders and his sheriffs continued to discriminate.

In some ways, Joe Arpaio is the modern incarnation of Birmingham, Alabama’s infamous police chief Bull Connor, an ardent opponent of integration in the 1950s and 1960s who directed fire hoses and violence at civil rights marchers.  Boldly defying the civil rights laws, segregationists in the Jim Crow era, like Arpaio today, had to be schooled on the rule of law. In one famous example, President Eisenhower in 1957 deployed federal troops to enforce the Supreme Court’s decision outlawing segregated schools in Brown v. Board of Education (1954). Only then could African American students attend Little Rock Central High School in Arkansas.

Ironically enough, in advocating aggressive enforcement of the U.S. immigration laws, Trump repeatedly emphasized the need to follow the rule of law. But President Trump’s pardon of Arpaio for flagrant violations of the civil rights laws is wholly inconsistent with any conception of the rule of law.

Presidential pardons by their nature are controversial, with President Ford’s pardon of President Nixon for his role in the Watergate cover-up a famous example. Still, in light of Arpaio’s controversial record, the fact that his pardon for a criminal contempt conviction provoked a firestorm of controversy should not be surprising. Still, an American President never has pardoned a person who repeatedly, willfully, and intentionally refused to comply with court orders aimed at ending mass violations of the civil rights of racial minorities.

Arpaio in effect took the view that the rule of law did not apply in Maricopa County, Arizona. This explains why Attorney General Jeff Sessions reportedly told President Trump that he could not drop the charges against Arpaio. And it explains why Republicans and Democrats alike have condemned the Arpaio pardon.

President Trump justified the pardon by saying that the sheriff “was just doing his job.” However, Arpaio’s “job” as a law enforcement officer does not include breaking the law or engaging in a pattern and practice of racial discrimination against Latinos.  Nor does Arpaio’s job as sheriff include intentionally violating court orders. The efforts to nullify a court order vindicating the civil rights of vulnerable minorities are precisely the kinds of unlawful actions of the Southern segregationists of yesterday. In important respects, the Arpaio pardon is akin to jury nullification popular in the days of Jim Crow when juries, whatever the evidence, simply would not convict whites – including police — of killing African Americans.

We live in a time of deep political division. The nation has seen civil unrest unfold as violent clashes take place between white supremacists and counter-protesters. President Trump and his followers have inflamed passion by claiming that immigration laws must be enforced with impunity, whatever the civil rights consequences. The pardoning of Joe Arpaio is entirely consistent with the enforcement-at-all-costs mentality and the sacrificing of Latina/o civil rights for immigration enforcement.

In pardoning Arpaio, the president demonstrates that, despite his stated commitment to enforce the immigration laws at all costs, he is not equally committed to enforcement of civil rights laws. That lack of commitment also can be seen in his response to the troubling recent clashes in Charlottesville. President Trump has made the political decision, consistent with the one to dismantle the Deferred Action for Childhood Arrivals program, to side with those opposed to federal civil rights law — and against the rule of law. That is not the message that the nation needs at this time.

September 17, 2017

RAISE Act: Kevin Johnson and global scholars explain "merit-based" immigration

[Cross-posted from The Conversation]

Editor’s note: In February, U.S. Republican senators Tom Cotton and David Perdue, with President Donald Trump, unveiled an immigration bill called the RAISE Act. It would create a “merit-based” points system for evaluating foreigners applying to come to the U.S. through an employment visa.

 

The senators said that in drafting it, they had looked to best practices for points-based systems like those in Canada and Australia. As Congress takes up the issue of immigration, we turned to our global network of scholars to get their perspective on how points systems work.



Kevin Johnson – University of California, Davis, United States

The RAISE Act would drastically reshape American immigration. It will also likely have the unintended consequence of increasing undocumented immigration.

Approximately one million immigrants are granted lawful permanent residence in the U.S. every year. 

The RAISE Act would cut annual legal immigrant admissions by one-half, primarily by eliminating family-sponsored immigration visas for those who are not spouses or minor children of U.S. citizens and permanent residents. This would reduce the total number of family-sponsored green cards from 226,000 to 88,000. Cuts to family-based immigration would primarily affect prospective immigrants from Mexico, China, India, the Philippines and Cuba.

These changes would transform the overall U.S. immigration system from primarily family-based to employment-based. Under the current system, most employment-based immigrants are highly skilled and make up only about 14 percent of those who receive green cards.

Under the RAISE Act, employment-based immigrants would make up a majority of those who receive green cards. The bill would create new criteria for evaluating the most highly skilled applicants.

In the proposed points system, applicants would earn points for meeting certain criteria such as age (preference for person between ages 26 and 30), investing US$1.35 million in the U.S. and having a degree. Extra points are awarded for degrees earned in the U.S. and in a STEM field. Nobel Prize winners, professional athletes and English language speakers would also get extra points.

The bill also seeks to eliminate the Diversity Visa program, which allocates 50,000 visas a year for countries with low rates of immigration to the United States. In addition it would cap refugee admissions at 50,000, which would be the lowest ceiling set in modern U.S. history. 

Halving legal immigration will likely increase the pressures for undocumented immigration. The current limits on legal immigration have already brought roughly 11 million undocumented immigrants to the U.S. 

This is especially the case because the merit-based system will not address the high demand in the United States for low- and medium-skilled workers in the agricultural, construction and service industries. 

Alex Reilly – University of Adelaide, Australia

In 2015-16, Australia accepted 189,770 permanent migrants through its skilled and family immigration streams. In addition, Australia permanently resettled just under 18,000 refugees and other humanitarian migrants. This has been the level of migration to Australia for more than 10 years, adding nearly 1 percent to the Australian population of 24 million every year. This is a considerably larger proportion than the U.S. admits through its migration programs.

Twenty years ago, more migrants came through the family stream than the employer stream. In 2015-16, 67.7 percent of migrants came through the skilled stream and 30.8 percent through the family stream. This change is a direct result of government policy prioritizing skilled migration because of its contribution to the economy.

However, these figures are deceptive, as numbers in the skilled migration stream include partners and dependents of primary applicants. So approximately half of all skilled migrants are actually family members of skilled migrants who do not have to meet the eligibility requirements of the primary applicant.

There are two pathways for skilled migration. The first, general skilled migration, requires applicants to have occupations on the skilled occupation list. Most of these skills are in professional areas such as medicine or engineering, or trades in demand in the economy such as plumbers and electricians. The list is updated regularly based on an assessment of Australia’s economic needs.

Visas for this group are awarded on a points system similar to what is being proposed in the U.S. Points are awarded for age, English language proficiency, skilled employment outside Australia, skilled employment in Australia and qualifications that are linked to occupations on the skilled occupation list. There are also points available for an Australian education, being accredited in a community language, studying in regional Australia, partner qualifications and completing a professional year in Australia. Although migrants in this skilled stream are highly qualified, they do not necessarily find employment in their area of expertise and many remain underemployed. 

The second pathway is for skilled migrants with an employer sponsor. This pathway is open to migrants with wider range of skills and has the advantage of migrants being in guaranteed employment when they first arrive in Australia. Employers must demonstrate that they have a skilled position available, and that there are no Australians willing or able to take up the position. This requires employers to have advertised jobs locally before seeking migrants to do the work. 

Almost all employer-sponsored migrants apply from within Australia, and 44 percent of independent skilled migrants also apply from within Australia, transitioning from temporary work, international student and working holiday maker visas. This reflects the very high number of temporary migrants working and studying on these visas in Australia – 750,000 in December 2016.

Mireille Paquet – Concordia University, Montreal, Canada

In 2015-2016, Canada admitted 271,845 permanent immigrants. Canada’s permanent migration inflows resemble those of Australia but are generally smaller than those received by the United States. Immigration is the largest contributor to population growth in Canada since the early 2000s.

The permanent immigration program is divided into three main streams: economic, family and humanitarian. The economic stream accounted for about 60 percent of the total permanent immigration to Canada in 2015-2016. Family made up 24 percent of the total immigration to the country. These proportions have remained relatively stable over the last 15 years, with economic immigration representing the largest share of those selected for permanent settlement in the countries. 

The economic stream for permanent immigration is currently divided into several programs. The Federal Skilled Workers Program is often used as the flagship example of Canada’s approach to selecting immigrants in relation to their expected economic contributions. U.S. President Donald Trump has praised it on the grounds that it would create economic mobility for both native-born Americans and immigrants.

To be considered, candidates must meet baseline criteria for work experience, language proficiency in at least one of the two official languages – French or English – and education. Candidates are then assessed using a 100-point selection grid that considers factors such as education, experience, age, arranged employment in Canada and adaptability. Adaptability refers to spouse or partner language level, past work studies in Canada for the applicant and spouse or partner, and the existence of relatives in Canada.

To be eligible, a candidate must score 67 points or higher. The pool of eligible candidates are then ranked. The highest-ranking individuals receive invitations to apply for permanent residence. This system, called Express Entry, relies on a comprehensive ranking system that involves a total of 1,000 factors. The minister of immigration issues the number of invitations to be extended every month.

Despite a sophisticated assessment system, research demonstrates that immigrants to Canada still face challenges in finding jobs and achieving economic mobility in the short and medium term. Gender, race and geographic position in the country and employment sector are all factors that affect economic integration of immigrants to Canada.

September 14, 2017

End of DACA is an Opportunity for Real Immigration Reform

By Kevin R. Johnson

[Cross-posted from the Daily Journal]

After months of speculation and rumor that has frightened immigrant communities across the United States, President Donald Trump has announced the end of the Deferred Action for Childhood Arrivals program. President Barack Obama created the program known as DACA to help protect undocumented immigrants brought to the United States as children from deportation. Since 2012 DACA has provided relief, and work authorization, to nearly 800,000 undocumented minors.

I laud the Obama administration for the courage and ingenuity to create DACA. Trump should not have ended the program that has benefited so many immigrants. But, there may be a silver lining in Trump's dismantling of DACA: He is delaying the end of the program for six months. This gives Congress time to pass a law that would provide enduring protections for the DREAMers, the term used to refer to undocumented college students who have become a potent political force. And it even could spur more far-reaching immigration reform.

The end of DACA has been met with expressions of nothing less than grief and a firestorm of bipartisan criticism. House Speaker Paul Ryan and Republican Sen. Orrin Hatch of Utah, for example, lobbied the president not to end the program. DACA seemed to have more supporters than ever. In the coming weeks, the nation is likely to see a great many protests and calls for political action.

It is worth remembering that Obama created DACA after Congress failed for years to enact comprehensive immigration reform. As he emphasized at the time, the deferred action program was a limited, and temporary, response to congressional gridlock on immigration. In my estimation, the creation of DACA was a constitutional and eminently sensible approach to a most sympathetic cohort of immigrants.

California has more DACA recipients than any other state - thousands of college students use the program that allows them to obtain authorization to work their way through school. In short, DACA students are seeking a better life than their parents.

In light of the fact that virtually all agree that the current immigration system is broken, Democratic and Republican political leaders should welcome the opportunity to reconsider immigration reform. Critics of DACA say it was flawed from the beginning because Obama created it through executive order. They instead argue that Congress is the appropriate branch of government to provide relief to undocumented immigrants. Whether one buys that argument or not, Congress now must act to protect DACA recipients and, in so doing, can once again tackle immigration reform.

In the end, DACA is just one piece of the larger immigration debate. The reform of our immigration laws is, needless to say, a complex problem. In 2013 a bipartisan group of senators passed carefully-crafted legislation aimed at reforming the legal immigration system, bolstering enforcement, and providing legal status to the 11 million undocumented immigrants in the United States. But the Republican-controlled House of Representatives never put the legislation to a vote.

The immigration reform proposal on the table today unfortunately would not solve any of these problems, but rather make them worse.  During the summer, Trump expressed support for a proposal called the Reforming American Immigration for Strong Employment (RAISE) Act, co-sponsored by Republican Senators Tom Cotton of Arkansas and David Purdue of Georgia. The Act would drastically reshape American immigration and likely increase pressures on undocumented immigration.

The RAISE Act would reduce legal immigration by 50 percent over the next decade. The government annually grants lawful permanent residence to approximately 1 million immigrants from countries including Mexico, China and India. About two-thirds of visas in the United States are allocated because applicants have family members already in the country. But this bill would eliminate all family sponsorship beyond spouses and minor children of U.S. citizens and legal permanent residents.

Besides dramatically reducing family-based immigration, the RAISE Act would replace the current selection scheme with a points system based on "merit." Applicants would earn points that favor high-paying job offers, advanced degrees and huge financial investments of more than $1 million in the United States. People who are closest to age 25 and have high English proficiency scores would also receive preference. The act would do nothing to help ensure the the lawful admission of workers in agriculture and the service industries, which today employs many undocumented workers.

The changes proposed under the RAISE Act would only exacerbate the current problem of undocumented immigration. The United States has roughly 11 million undocumented immigrants largely because of the unrealistic restrictions on legal immigration under current laws. California is home to nearly a quarter of the nation's undocumented immigrants.  

If Congress enacts a system like the RAISE Act, it will not address the high demand in the United States for low- and medium-skilled workers. Who will fill the jobs in agriculture, construction and service industries that undocumented immigrants overwhelmingly perform today?

By eliminating DACA Trump is giving Congress a historic opportunity for immigration reform. This is a chance for lawmakers to enact more profound immigration reform that is fair, enforceable, and lives up to the nation's ideals. Such reform is just what the nation needs in these troubled times.

September 12, 2017

Undocumented Immigrants Should Not Have to Risk Deportation for Talking to Police

By Kevin R. Johnson

[Cross-posted from the Sacramento Bee]

In 2015, the San Francisco Sheriff's Department released an undocumented immigrant as required by local ordinance. He later allegedly murdered Kate Steinle. This undeniable tragedy stirred a national controversy over "sanctuary laws."

But many state and local governments had similar laws and policies that require the release of noncitizens from custody in the absence of a federal warrant. The Los Angeles Police Department, among others, limits police inquiry into the immigration status of crime victims, witnesses and suspects, a policy that dates to the late police Chief Daryl Gates' tenure in 1979.

The basis for such policies stems from an important principle: effective law enforcement requires trust of all residents, including immigrants. To build that trust, local government cannot appear to be part of the federal immigration enforcement machine. For that fundamental reason, there traditionally has been a separation between local police and federal law enforcement.

Consistent with that long tradition, a proverbial flood of jurisdictions across the country responded to record numbers of removals by the Obama administration. The goal was to enact laws and policies to protect state and local government autonomy. In 2014, the California Legislature passed the TRUST Act, which said state and local law enforcement did not have to cooperate with the U.S. government for arrests of noncitizens who committed minor crimes.

Now the Legislature is considering the California Values Act, Senate Bill 54 by Senate President Pro Tem Kevin de León, D-Los Angeles. The bill is a response to President Donald Trump's repeated threats of mass deportations, made all the more real with the rescission last week of the Deferred Action for Childhood Arrivals (DACA) program.

SB 54 would provide safeguards to ensure that immigrants can visit government offices, work with police, take their children to school and go to the doctor without fear of deportation. In line with policies already in place, it also would allow local and state jurisdictions to refuse to comply with federal immigration enforcement if an undocumented immigrant has not committed a major crime.

The act responds to a palpable fear among immigrants, who are anxious about any interactions with state and local government officials. Specifically, they believe that information provided to those local officials could end up in the hands of federal immigration enforcement authorities. And who could blame them?

In recent months, U.S. Immigration and Customs Enforcement officials have gone to state and local courthouses to make targeted arrests of undocumented immigrants facing criminal charges, even traffic infractions. Immigration officials have gone so far as to arrest an undocumented immigrant after he dropped his child off at school.

The Trump administration no doubt will attack the California Values Act, as it has attacked "sanctuary cities" generally. In a January executive order, the administration threatened to eliminate all federal funding to so-called sanctuary cities. A federal court in San Francisco ruled that the defunding proposal was unconstitutional.

The U.S. Supreme Court has also weighed in by striking down state laws, such as Arizona's "Show Your Papers" law, SB 1070. That law mandated that state and local law enforcement officers participate in immigration enforcement. Although state and local officials cannot regulate immigration as Arizona tried to do, they can determine how to provide essential services to immigrants in their communities. That is precisely what the Values Act seeks to do.

California's Values Act is not an attempt to regulate immigration. Rather, it is an attempt to serve and protect all California residents, consistent with federal law. De León's bill is a legitimate effort by the state to determine how it interacts with, and protects, its citizens.

September 1, 2017

With pardon, Trump shows no commitment to U.S. civil rights laws

[Cross-posted from the Davis Enterprise]

By Kevin R. Johnson

Over the weekend, a bipartisan group of political leaders - including Arizona Sens. Jeff Flake and John McCain, as well as House Speaker Paul Ryan, R-Wis. - condemned President Trump's pardon late last week of Maricopa County (Arizona) Sheriff Joe Arpaio.

For more than two decades, the controversial sheriff struck fear into the hearts of immigrants and U.S. citizens of Mexican ancestry in Arizona. A respected federal court judge appointed by President George W. Bush, Murray Snow, found that Arpaio, and his sheriff's office, aggressively - and lawlessly - used racial profiling to enforce immigration laws.

Defeated for re-election in 2016, the controversial sheriff had made a name for himself in unabashedly claiming that he wanted to aggressively enforce U.S. immigration laws. But publicity stunts showed cruelty and insensitivity toward inmates under his protection.

Arpaio, for example, made inmates wear pink underwear and suffer the heat outdoors in scorching Arizona summers. Undocumented immigrants were forced to live in a segregated "tent city" that Arpaio bragged was a "concentration camp."

The nation has faced similar civil rights issues raised by Arpaio's refusal to follow the rule of law. Southern segregationists in the 1950s and 1960s expressed views not that different from those expressed by contemporary alt-right activists and white supremacists. They, too, had to be schooled on the rule of law.

In one of the most famous examples, President Eisenhower in 1957 deployed federal troops to enforce the Supreme Court's decision outlawing segregated schools in Brown v. Board of Education (1954) so that African-American children, known as the Little Rock 9, could attend Little Rock Central High School in Arkansas.

Presidential pardons at times have been controversial. President Ford's pardon of President Nixon for his role in the Watergate cover-up is a leading modern example. However, an American president never has pardoned a person who repeatedly, willfully and intentionally refused to comply with court orders aimed at ending mass violations of the civil rights of racial minorities.

Arpaio was pardoned despite a judge's ruling that found him guilty of criminal contempt. A neutral federal judge, Susan Bolton, presided over the trial on criminal contempt and, after hearing testimony from Arpaio himself, found him guilty.

In addition to the civil rights violations, Arpaio undermined the fundamentals of the legal process. For a law enforcement officer to be found liable for criminal contempt is serious business. This explains why Attorney General Jeff Sessions reportedly told Trump that he could not drop the charges against Arpaio. And it explains why Republicans and Democrats alike are condemning the Arpaio pardon.

Trump has founded his presidency on enforcing the U.S. immigration laws. But his pardon of Arpaio is inconsistent with the rule of law. The president justified the pardon by saying that the sheriff "was just doing his job." However,"his job" as a law enforcement officer does not include breaking the law.

First, Arpaio was found to have engaged in a pattern and practice of racial discrimination in law enforcement against Latinos. Second, Arpaio was punished for intentionally violating court orders. Both offenses are antithetical to the rule of law. The efforts to nullify a court order vindicating the civil rights of vulnerable minorities are precisely the kinds of actions of the Southern segregationists of the 1950s and 1960s.

We are living in a time of deep political division and disturbing challenges to our Constitution. The nation has seen civil unrest unfold as violent clashes, including in California this past weekend, take place between white supremacists and counter-protesters. Trump and his followers have inflamed passions by claiming that immigration laws must be enforced with impunity.

In pardoning Arpaio, however, the president does not appear to be equally committed to enforcement of civil rights laws. He has demonstrated this through his pardon of Arpaio, as well as in his response to the troubling events in Charlottesville.

Trump seems to be siding with those opposed to federal civil rights law - and against the rule of law - by his continued attacks on the independence of the judiciary. That message is not what the nation needs at this time.

 

June 28, 2017

Media Advisory: UC Davis School of Law to present U.S. Supreme Court Year in Review (2016 term)

I am so pleased that the School of Law is presenting a panel discussion next week on the 2016 Supreme Court term. Special thanks to Marc Levinson '73 and the Sacramento office of law firm Orrick, Herrington & Sutcliffe LLP for hosting us.

Here is the media advisory that just went to the press this week. Note the line that reads, "UC Davis School of Law hopes to make this the first of an annual series of 'U.S. Supreme Court Year in Review' events"!

***

Distinguished Panel of UC Davis Experts to Lead Discussion on U.S. Supreme Court
Topics to include major decisions and the addition of Justice Gorsuch to the Court during the 2016 term.

What: "U.S. Supreme Court Year in Review" event, where leading experts on the U.S. Supreme Court will hold a lunchtime panel discussion on the 2016 term

Why: To inform the local legal community about the latest news from the high court, including detailed analysis of its most important decisions of the term on topics including immigration, criminal law, education, and more. Panelists will also discuss the impact of the new jurist on the bench, Justice Neil Gorsuch. UC Davis School of Law hopes to make this the first of an annual series of "U.S. Supreme Court Year in Review" events.

When: Friday, July 7, from 12:00 to 1:30 P.M.

Where: The law firm of Orrick, Herrington & Sutcliffe LLP, 400 Capitol Mall, Suite 3000, Sacramento

Who: A panel of UC Davis law faculty and an attorney from Orrick's San Francisco office.

  • Kevin R. Johnson, Dean at UC Davis School of Law
  • Carlton F.W. Larson, Professor at UC Davis School of Law
  • Aaron Tang, Professor at UC Davis School of Law and former clerk for U.S. Supreme Court Justice Sonia Sotomayor
  • Easha Anand, Associate at Orrick (San Francisco) and former clerk for U.S. Supreme Court Justice Sonia Sotomayor
  • Madhavi Sunder, Senior Associate Dean at UC Davis School of Law

One-on-one interviews with the panelists will be available after the event.

The audience includes members of Sacramento's legal community, who pre-registered to attend.

For more information, contact Karen L. Charney at klcharney@ucdavis.edu.

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