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August 6, 2018

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

By Kevin R. Johnson

[Cross-posted from The Conversation]

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

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

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

So what was the Flores case about?

Case took years

In the 1980s, the Reagan administration aggressively used detention of Central Americans as a device to deter migration from Central America, where violent civil wars had caused tens of thousands to flee. As a result, the government held in custody Central Americans arrested at the U.S.-Mexico border, including many who sought asylum in the U.S. because they feared persecution if returned home. Immigrant rights groups filed a series of lawsuits challenging various aspects of the detention policies, including denying access of migrants to counsel, taking steps to encourage them to “consent” to deportation, and detaining them in isolated locations far from families and attorneys.

One suit was filed by the American Civil Liberties Union in 1985 on behalf of Jenny Lisette Flores, a 15-year-old from El Salvador. She had fled violence in her home country to live with an aunt who was in the U.S. But Flores was detained by federal authorities at the U.S. border for being undocumented.

The American Civil Liberties Union charged that holding Flores indefinitely violated the U.S. Constitution and the immigration laws. The Flores case made its way to the U.S. Supreme Court.

In its 1993 ruling in the case, the court held that a regulation allowing the government to release a migrant child to a close family member or legal guardian in the United States was legal.

But the primary legacy of the case was the subsequent settlement, to which both the Clinton administration and the plaintiffs agreed in 1997.

The Flores settlement established standards for the treatment of unaccompanied minors who were in the custody of federal authorities for violating the immigration laws. It requires the federal government to place children with a close relative or family friend “without unnecessary delay,” rather than detaining them; and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Generally speaking, this has meant migrant children can only be kept in federal immigrant detention for 20 days.

The Flores settlement created a framework agreed to by the U.S. government that addressed how migrant children were to be treated if they were detained. It is a landmark settlement in no small part because Central Americans continue to flee violence in their homelands and the U.S. government has responded with mass detention of immigrant children. Although the Flores settlement was agreeable to the Clinton administration, the Trump administration wants to detain families, including children, for periods longer than permitted by the Flores settlement.

July 30, 2018

Back to the Future?

By Kevin R. Johnson

[Cross-posted in Frank Essays]

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

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

Immigrants from Latin America

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

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

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

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

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

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

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

Deportations

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

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

Raids

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

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

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

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

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

Detention

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

Border Enforcement

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

Legal Immigration

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

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

Conclusion

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

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

July 11, 2018

The travel ban in numbers: Why families and refugees lose big

By Raquel Aldana

[Cross-posted from The Conversation]

On June 16, the U.S. Supreme Court lifted the 9th Circuit’s nationwide injunction against the third version of President Donald Trump’s travel ban. This ruling marks Trump’s first court victory since he issued the original travel ban back in January 2017.

Thousands now face indefinite separation from family members from the affected countries. Thousands more will be denied safe harbor from persecution.

Trump asserts the travel ban is necessary to protect national security. This claim is contested by many, including 26 retired generals and admirals, who filed an amicus brief urging the U.S. Supreme Court to invalidate the travel ban.

As a researcher who studies the effect of U.S. immigration laws and policies on human rights, I consider it important to explain the significant numeric scale of the ban’s impact on refugees and U.S. families.

Refugees and family members are not the only categories of foreign nationals from the enumerated countries in the travel ban who will be denied entry. Students, tourists, business travelers and workers will also be turned back. But refugees and fa-

mily members raise the most compelling human rights and humanitarian reasons for people to care.

Travel restrictions vary by country. The least restrictive measures apply to Venezuela. Only certain government officials and their immediate family members are indefinitely suspended from travel on short-term business or tourism. The effect of these unusual restrictions are likely to be minuscule and will not impact family unification or refugee admissions. For this reason, I didn’t include Venezuela’s numbers in my analysis.

All other nations are subject to indefinite bans on travel for permanent immigration to the U.S. This ban applies to immigrants who want to unite with family in the U.S. and refugees. Each nation also faces different travel restrictions for temporary immigration. The most restrictive travel restrictions apply to North Korea and Syria. All temporary immigration from these countries is suspended indefinitely. For Libya and Yemen, only temporary travelers for business and tourism are suspended indefinitely. For Iran, all temporary immigration is suspended except students and exchange visitors. Finally, for Somalia, all temporary migration is not suspended but subjected to additional scrutiny.

The travel ban does allow case-by-case exemptions for certain people if admission is found to be in the national interest. This includes lawful permanent residents, asylum-seekers, refugees and students, among others. In his dissent, however, Justice Stephen Breyer attempted to document how many waivers to the travel ban had been granted, concluding that the government applied the waiver in such a tiny percentage of eligible visas as to render it meaningless.

The measurable impact on family immigration

Family immigration to the U.S. from any single nation is determined by two factors. First, the demand for such visas from existing family members already in the U.S. who can sponsor certain family members. Second, for those visas that are numerically restricted, the availability of those visas to that nation in a given year.

In general, a nation’s patterns of family immigration tend to remain fairly steady over the years. So it’s possible to estimate, based on recent data from the seven (excluding Venezuela) travel ban nations, approximately how many immigrants seeking to unite with their families will be banned indefinitely from entry into the U..

During each of the last three years for which detailed profiles are publicly available – 2014 through 2016 – Iran, Libya, North Korea, Somalia, Syria and Yemen sent between 8,000 and over 15,000 parents and children of U.S. citizens.

These same nations also sent between 3,000 and over 7,000 other eligible family members, such as siblings of U.S. citizens and spouses of lawful permanent residents.

Combined, in just three years, more than 35,000 family members from these nations came to unite with their families in the U.S. Among these nations, Iran and Yemen sent the most, followed by Syria and Somalia.

The travel ban also significantly affects family members’ ability to even visit each other in the U.S. Even when the ban was stalled by the courts, the overall number of nonimmigrants, or temporary migrants, from these nations significantly decreased.

Iran, for example, has sent by far the largest share of nonimmigrants of any of the travel ban countries in the last decade. In 2016, nearly 30,000 nonimmigrants came to the U.S. from Iran. In 2017, fewer than 20,000 came.

What this means for refugees

According to United Nations, the travel ban affects nations in significant humanitarian crises with substantial flows of refugees.

Syrians are the most affected. This group represents a total 5.5 million refugees, the largest share by far of the world’s overall 25.4 million refugees. But Iran and Somalia each also have nearly 1 million refugees, while Yemen has nearly 300,000 and Libya nearly 100,000. Four of these nations – Iran, Somalia, Syria and Yemen – face protracted refugee crises. Only North Korea reports a low figure of 2,245, although this likely reflects North Koreans’ fear of escaping or reporting their presence when they do.

A high supply of refugees doesn’t necessarily translate to high numbers of refugees admitted into the U.S. Still, over the past decade, the U.S. has consistently offered refugee protection to Iran and Somalia. The peak for both these nations was in 2016, when the U.S. admitted more than 9,000 refugees for each nation.

Since 2015, Syrians also began to receive refugee protection in substantial numbers, with 2016 also being the highest number of 12,587 refugees admitted.

President Trump has reduced the levels of refugee flows into the U.S. to historic lows. This will affect all refugees. Venezuela, for example, which today reports 1.5 million refugees, is unlikely to find safe harbor for most of its refugees in this current climate.

Not unlike family immigration, the indefinite ban on temporary visas will affect the ability of nationals from all of these nations to travel to the U.S. to seek asylum.

The U.S Supreme Court’s ruling forecloses judicial oversight over much of President Trump’s immigration policies, at least those affecting the entry of foreign nationals. This includes those facing high stakes at the border: family separation or lack of safe harbor from persecution. For now, the nations included in the travel ban face an indefinite iron locked door, with no hope that their knocking will be answered.

 

May 7, 2018

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

by Kevin R. Johnson

 

[Cross-posted from ImmigrationProf Blog]

 

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


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

 

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

 

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

 

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

 

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

 

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

 

Download Introductory chapter of book


April 30, 2018

Opinion analysis: Crime-based removal provision is unconstitutionally vague

by Kevin R. Johnson

[Cross-posted from SCOTUSblog]

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

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

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

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

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

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

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

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

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

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

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

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

March 26, 2018

Dean Johnson Files Amici Brief in Ninth Circuit DACA Rescission Appeal

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

The amici, in alphabetical order included:

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

March 5, 2018

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

[Cross-posted from SCOTUS Blog]

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

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

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

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

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

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

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

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

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

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

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

January 12, 2018

Immigration Adjudication in an Era of Mass Deportation

By Kevin R. Johnson

[Cross-posted from Immigration Prof.]

Here is an outline of my presentation at the Section on Immigration Law Program on Immigration Adjudication in an Era of Mass Deportation, Association of American Law Schools 2018 Annual Meeting

The program focused on immigration adjudication and its transformation during President Trump's first year in office.  The Trump administration has sought to influence immigration adjudication through 

  1. Increasing cases coming into the removal system through aggressive enforcement; and 
  1. Facilitating the disposition of cases. For example, Attorney General Jeff Sessions' December 2017 memorandum encourages the "prompt resolution of meritless cases." 

These steps are consistent with President Trump's immigration policy preferences of (1) increasing removals; and (2) decreasing legal immigration through tightening the visa process and other steps. 

During his first year in office, the three "travel" or "Muslim" ban executive orders were perhaps the Trump administration's most high profile immigration enforcement initiatives.  The travel bans are part of a series of immigration enforcement actions that have created considerable fear in immigrant communities.

My focus here is on two other immigration enforcement executive orders issued in January 2017:  

  1. Border Security and Immigration Enforcement Improvements Executive Order [Border Security Order]; and
  2.  Enhancing Public Safety in the Interior of the United States Executive Order [Interior Enforcement Order].

A number of provisions in those orders will directly and indirectly affect immigration adjudication.  Here are a few:

  1. Limits on Prosecutorial Discretion

Section 1 of the Interior Enforcement Order provides that there shall be no exemption of "classes or categories of removable aliens from potential enforcement."  Immigration agencies must "employ all lawful means to enforce the immigration laws."  Section 1 foreshadowed the end of the Deferred Action for Childhood Arrivals (DACA) program.  It is aimed toward expanding the numbers of noncitizens subject to removal, similar to the end of DACA and the end of temporary protected status for Salvadorans did.

  1. Revival of Secure Communities and the Elimination of Priority Enforcement Program

Section 10 of the Interior Enforcement Order reinstated Secure Communities, which President Trump discontinued in November 2014.  Little attention has been paid to this development, which will likely increase the cases in the removal pipeline.  Secure Communities had been severely criticized as overbroad.  The program fed large numbers of petty criminals into the removal system.  State and local resistance to Secure Communities led to its dismantling. 

  1. Bringing Back 287(g) Agreements

Interior Enforcement Order § 8 brings back cooperative agreements between state, local, and federal government to enforce the immigration laws under Immigration and Nationality Act §287(g), which the Obama administration had largely abandoned.  Civil rights concerns with state and local enforcement contributed to the abandonment of 287(g) agreement.  The Trump administration hopes to enhance state and local cooperation and to increase number of removable noncitizens. 

    4. Expansion of Expedited Removal

Expedited removal -- with limited rights for the noncitizens -- has been limited to noncitizens (1) apprehended within 100 miles of the U.S. border; and (2) in the country for less than two weeks.  The rationale was that noncitizens in these categories had limited rights, given their short time in the United States, and necessarily few ties to the country.

Border Security Order § 11 eliminates the geographic limits to expedited removal and would make noncitizens in the country for up to two years subject to expedited removal.  The order calls for the issuance of regulation to expand expedited removal along these lines.  This would raise serious due process problems because it would bring immigrants with greater ties to the United States within the purview of expedited removal.  See Landon v. Plasencia (1982).    

  1. Immigrant Detention

Detention long has been a tool of immigration enforcement, but noncitizens have been generally permitted to post a bond and be released from custody before a removal hearing.  Border Security Order § 6 ends "catch and release" of immigrants and bonding out of custody after apprehension.  It makes mandatory detention official federal policy.  Detention has been challenged in many lawsuits, including in one before the Supreme Court.  See Jennings v. Rodriguez.   Detention is a way of streamlining the docket.  If detained, a noncitizen is more likely to agree to "voluntary departure" and forego a full hearing on removal and possible relief from removal. 

CONCLUSION

Some of the Trump immigration measures are ill-conceived and weakly implemented.  The first version of the travel ban arguably is an example.  However, the two January 2017 immigration enforcement orders are more focused and directed when it comes to using the law and policy to  (1) increase noncitizens in the removal system; and (2) facilitate removals.

It is important to note that the Executive Office for Immigration Review is housed in the Justice Department.  Attorney General Sessions has expressed strong views on immigration and is taking steps to facilitate removals through immigration court system.  He is increasing pressures to dispose of cases and may limit the discretion of immigration judges to not enter removal orders though such devices as administrative closure.

****

These issues are discussed in detail in an article to be published in a forthcoming immigration symposium of the Santa Clara Law Review.  Kevin R. Johnson, Immigration and Civil Rights in the Trump Administration:  Law and Policy Making by Executive Order, 57 Santa Clara Law Review (forthcoming 2018).

 

January 12, 2018

The Year of Living Dangerously: Immigration in the Era of Trump

By Kevin R. Johnson

[Cross-posted from Immigration Prof.]

President Donald Trump has been in office for almost one year.  In that time, he has greatly redirected immigration law and policy and energized immigration enforcement.  Even though the Obama administration had deported record numbers of immigrants in his eight years in office, Trump endeavored to keep his promise of dramatically increasing immigration enforcement.  That included the pledge to "build a wall" along the U.S./Mexico border. The "wall" continues to make the news.   Just yesterday, the Secretary of the Department of Homeland Security was at the border to look at prototypes of the wall.

In his first weeks in office, in addition to the first iteration of the "travel" or "Muslim" ban, President Trump issued two executive orders regarding immigration enforcement.  The orders were geared toward enhancing border and interior enforcement of the immigration laws.  They set in motion attacks on "sanctuary cities," expansion of detention as a tool of immigration enforcement, dramatic increases in the number of immigration enforcement officers, widening the scope of expedited removal (i.e., removals with limited procedural protections), and more.  The Trump administration, including President Trump himself, repeatedly made statements about the new  "zero tolerance" policy toward undocumented immigrants.  The early days of the new administration struck fear in the hearts of immigrant. The good news is that the administration did not pursue a deportation campaign akin to the infamous "Operation Wetback," which Trump endorsed during the presidential campaign.  Rather than announcing a new deportation campaign, the administration for the most part employed the enforcement machinery in place during the Obama presidency, with a particular focus on noncitizens who had brushes with the criminal justice system.

The Trump administration waited until September to announce the phasing out of the Deferred Action for Childhood Arrivals (DACA) program, the much-heralded Obama program that provided limited relief to undocumented immigrants brought to the United States as  children.  The end of DACA led to a push for Congress to provide relief to the DACA recipients. Discussion continues whether the Trump administration will accept a path to citizenship for DACA recipients and, if so, what the terms will be.  Congress in the coming weeks may well act on a "DACA fix" as part of a budget package.

President Trump's concerns with immigration are not limited to undocumented immigration.   The administration has tightened visa requirements for entry into the United States.  In addition, President Trump in August endorsed immigration reform in the name of the RAISE Act, S. 1720, which was introduced in the Senate by Senators Tom Cotton (R-AR) and David Perdue (R-GA).  Because the Act would not provide a path to legalization for undocumented immigrants, it cannot be viewed as a true piece of "comprehensive" immigration reform.  As I have outlined, that Act would reduce immigration by one-half by restricting family migration, eliminate the diversity visa program, and adopt a "merit-based" immigration system disfavoring immigrants from the developing world and redirecting migration to the developed (and predominantly "white" world).  In total, the RAISE Act would likely increase, not decrease, pressures for undocumented immigration.  Consistent with the RAISE Act, the President recently has called on Congress to end "chain migration," which is another way of calling for the end of family reunification as a fundamental goal of the U.S. immigration laws.

In sum, President Trump in his first year in office has made immigration enforcement a high priority in ways that President Obama did not.  The Obama administration embraced enforcement as a tool to help persuade Congress to pass comprehensive immigration reform, including a path to legalization for the eleven million undocumented immigrants who live in the United States.  Enforcement thus was a necessary "evil" to secure long-term benefits for immigrants.  In contrast, President Trump pursues enforcement as an end in itself (and to keep campaign promises) and seeks to increase enforcement at every turn.  He also embraces measures such as the RAISE Act, which would reduce overall levels of immigration to the United States.  Vigilance is necessary as the Trump administration likely will continue to pursue its goals of increasing immigration enforcement while reducing legal immigration.

December 20, 2017

2017's Top 10 Immigration Stories

By Kevin R. Johnson

[Cross-posted from ImmigrationProf.]

Here is ImmigrationProf's Top 10 Immigration Stories for 2017, a memorable year indeed:

1.   President Donald TrumpPresident Trump's fiery immigration rhetoric and tough immigration enforcement policies unquestionably were the biggest immigration story in the United States in 2017.  It is hard to know where to start, from the travel bans to immigration enforcement executive orders to the end of DACA to many statements and initiatives greatly increasing fear in the immigrant communities.  President Trump's aggressive immigration measures might only have been topped by his tough, often caustic, immigration rhetoric.  The good news is that the Trump administration's immigration measures have revitalized and inspired the immigrant rights movement.

2.   The End of DACA.   After months of speculation, the Trump administration, in an announcement by Attorney General Jeff Sessions, in September began the phasing out of the Deferred Action for Childhood Arrivals program, President Obama's signature immigration initiative.  The future of DACA recipients was thrown into disarray. There were protests of the end of DACA across the country and many calls for congressional action to address the many deficiencies with the immigration laws.

3.   The Pardon of Joe Arpaio  In August, President Trump pardoned former Maricopa County (Arizona) Sheriff Joe Arpaio After a criminal contempt trial, a U.S. district court had found Arpaio to have intentionally refused to comply with court orders that he not engage in unlawful racial profiling of Latina/os in Arizona, U.S citizens as well as immigrants. In continued violation of numerous court orders, Arpaio continued his discriminatory law enforcement practices and even had an investigator tail the wife of the district court judge who ordered the injunction. Not surprisingly, the pardon was widely criticized.

4.   Chief Justice of California Criticizes ICE Operations at the California Courthouses.   In March, Chief Justice of California Tani Cantil-Sakauye expressed concerns with federal immigration enforcement operations at the California courthouses in a letter to Attorney General Jeff Sessions and then-Secretary of the Department of Homeland Security John Kelly.  Her specific concerns centered on "reports from some of our trial courts that immigration agents appear to be stalking undocumented immigrants in our courthouses to make arrests."   California's courageous Chief Justice received a less than friendly response from the Attorney General and DHS Secretary.

5.   Defense Verdict in Kate Steinle Case.  The tragedy of Kate Steinle's death on the San Francisco waterfront became a front page immigration football for, among others, President Trump.  In November, a San Francisco jury reached a verdict in the trial of a homeless undocumented immigrant in the fatal shooting of Steinle.  The jury found for the defense on all counts but a firearms charge.  The verdict provoked much discussion and debate. President Donald Trump, who had previously talked about the Steinle case as an example of why undocumented immigration was out of control, condemned the verdict.  He tweeted that the not guilty verdict in the Steinle murder trial was "disgraceful."  Jose Ines Garcia Zarate, a Mexican citizen who had been released from a San Francisco jail and had previously been deported many times, had been charged with murder.

6.   The Supreme Court and Immigration.   The Supreme Court's 2016 Term ended with a whimper in its remaining immigration cases.  On the last day of the Term, the Court agreed to review the travel ban decisions in the 2017 Term (a grant that it later dismissed as moot in the wake of the issuance of a new travel ban by President Trump).   The Court also decided Hernandez v. Mesa, which involved a cross border shooting by U.S. immigration enforcement officer of a young Mexican national.  The Court in a per curiam opinion vacated and remanded the case to the court of appeals to consider whether the family could sue for violation of the Fourth Amendment.  Last but not least, on the last day of the Term, the Court ordered reargument in two immigration cases that were re-argued in October -- Jennings v. Rodriguez  (reviewing the legality of detention of immigrants without a bond hearing) and Sessions v. Dimaya (reviewing a Ninth Circuit decision, written by Judge Stephen Reinhardt, striking down a criminal removal provision as unconstitutionally vague).  Justice Kagan later recused herself in the Jennings case.

The Court earlier in the 2016 Term had decided four decisions touching on immigration, with the decisions generally favoring the immigrant:

1.  Sessions v. Morales-Santana (invalidating gender distinctions favoring women over men based on antiquated on stereotypes in derivative citizenship laws).

2.  Esquivel-Quintana v. Sessions  (interpreting criminal removal provision and finding in favor of noncitizen convicted of a crime).

3.  Maslenjak v.. United States  (finding in favor of a U.S. citizen in a denaturalization case).

4.  Lee v. United States  (finding in favor if immigrant in ineffective assistance of counsel case based on erroneous advice on immigration consequences of guilty plea).

 7.       Sanctuary resistance.  As President Trump's immigration initiatives were put into place, many state and local governments resisted and sought to protect immigrant residents.  California in fact became a "sanctuary" state.   The Golden State made national news when, in a rebuke to President Trump's expanded immigration enforcement measures, Governor Jerry Brown today signed "sanctuary state" legislation, vastly limiting who state and local law enforcement agencies can hold, question, and transfer at the request of federal immigration authorities.  Senate Bill 54, which takes effect in January, has been hailed as part of a broader effort to protect more than 2.3 million undocumented immigrants living in the state. The law was met with swift denunciations from Trump administration officials and became the focus of a national debate over how far states and cities can go to prevent their officers from enforcing federal immigration laws.  Here is my take on SB 54.  A number of states, including New York, Hawaii, and others also have been resisting the Trump administration's aggressive immigration enforcement initiatives.

8.   RAISE Act.  Congress has debated comprehensive immigration reform for years.  This summer, President Trump endorsed immigration reform in the name of the RAISE Act, S. 1720, which was introduced in the Senate by Senators Tom Cotton (R-AR) and David Perdue (R-GA).   The RAISE Act would drastically reshape American immigration.  The Act would cut the annual immigrant admissions by one-half by eliminating all family sponsorship beyond spouses and minor children of U.S. citizens and lawful permanent residents, and would reduce various family categories from 226,000 green cards to 88,000.  The cuts to family-based immigration would reduce immigration from, among other nations, Mexico, China, and India. An analysis by the Migration Policy Institute looks critically at the RAISE Act.  Besides dramatically reducing family-based immigration, the RAISE Act would replace the current selection scheme with a points system in which applicants would earn points based on "merit."  The bill also seeks to eliminate the Diversity Visa program and further caps refugee admissions, cutting back lawful immigration by 100,000 a year.   In total, the RAISE Act would lead to an overall reduction of legal immigration by 50 percent over the next decade. That would exacerbate the current problem of undocumented immigration.  

9.   Human Trafficking Deaths in San Antonio News in July of a tragedy in Texas offered a frightening glimpse of the horrors of modern human trafficking.  Outside a San Antonio Walmart morning, authorities found eight bodies and 30 undocumented immigrants in the trailer of a truck.  The victims of trafficking were severely injured from overheating inside. A ninth person later died in hospital.  A federal complaint was filed alleging that James Matthew Bradley Jr. unlawfully transported aliens in violation of law resulting in the deaths. Upon conviction, the offense is punishable by life imprisonment or death, a $250,000 fine, and three years of supervised release.  Despite increased border enforcement, the smuggling of migrants into the United States continues to be a problem and a lucrative enterprise for some.  For many years, death on the border (and here and here) as migrants attempt to make the journey to the United States have been commonplace.  Increased immigration enforcement measures have re-routed migrants through deserts and mountains where migrants are more likely to die.  Human smuggling has grown as a business enterprise.  

10.   A Family Slave?  In a gripping family storyAlex Tizon, who passed away this past March, wrote in The Atlantic about his "family's slave," Lola, who was brought to the United States from the Philippines.   Tizon tells about Eudocia Tomas Pulido called "Lola," who his mother inherited from her father. Lola,  a modern-day slave, worked as a domestic servant.  As reported in one news story: "The article drew mixed reactions, with some labeling him complicit to the abuse of Lola-how was it allowed to go on for so long? Others acknowledged that the story was neither about glorification nor justification, but to give Lola the voice she was made to feel she never deserved. . . ."