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March 26, 2019

Justices' Immigration Detention Ruling May Have Small Impact

[Cross-posted from Law360]

In ramping up immigration enforcement, the Trump administration has expanded the use of detention. As with many of his policy initiatives, President Donald Trump has added his own rhetorical and policy flourish to aggressive enforcement efforts.

Through an executive order issued within days of his inauguration, he declared the end of “catch and release” of noncitizens (i.e., allowing them a possibility of bonding out of custody pending their removal hearings) and later instituted a policy of separating Central American parents and children in immigration detention. This latter policy provoked a national — and bipartisan —furor that led to its speedy abandonment.

Nonetheless, immigrant detention continues to be central to the Trump administration’s response to Central American asylum seekers. At a critical juncture in contemporary immigration enforcement, the U.S. Supreme U.S. Supreme Court ’s 5-4 decision last week in Nielsen v. Preap[1] expanded executive power to detain immigrants.

Along with noncitizens associated with terrorism, “criminal aliens” are often targeted for harsh treatment under the U.S. immigration laws. A large portion of the removals from the United States of lawful permanent residents each year are of immigrants convicted of crimes. The executive branch, including when Barack Obama was president, lost in the Supreme Court several removal cases based on relatively minor criminal convictions.[2]

Congressional amendments in 1996 toughened the immigration statute to require mandatory detention of certain categories of “criminal aliens." In Demore v. Kim (2003),[3] the Supreme Court upheld the lawfulness of detention of immigrants convicted of certain crimes pending their removal from the United States under 8 U.S.C. § 1226(c).

Less than two years ago, the court grappled with the right to a bond hearing for immigrants convicted of crimes placed in detention in Jennings v. Rodriguez (2018);[4] after holding re-argument in the case, the court, in an opinion by Justice Samuel Alito, held that the statute did not require a bond hearing and remanded the case to the court of appeals to address the constitutionality of mandatory detention.

The contemporary use of detention by the Trump administration heightened the attention paid to the Supreme Court’s review of the complicated statutory question of immigrant detention in Nielsen v. Preap. Entering the United States as a refugee from Cambodia in 1981, Mony Preap had several convictions, mostly small-time drug convictions.

Released from criminal custody in 2006, he was not arrested by the U.S. immigration authorities until 2013. The U.S. government placed two other plaintiffs, Juan Lozano Magdaleno (who entered the United States from Mexico in 1974) and Eduardo Vega Padilla (a Mexican citizen who entered the country in 1966), into immigrant detention five and 11 years, respectively, after their release from state custody.

Two class actions and a group of habeas corpus cases challenged the lawfulness under the immigration statute of U.S. government arrests of lawful permanent residents long after release from state custody. Importantly, the lawsuits did not challenge the statute on constitutional grounds but only claimed that the detention was not authorized by the statute.

8 U.S.C. § 1226(c) provides that the U.S. government “shall take into custody any alien [described in subsequent sub-sections as being convicted of certain crimes and being related to persons engaged in `terrorist activities’] ... when the alien is released, without regard to whether the alien is released on parole, supervised release or probation ....” (emphasis added). The U.S. Court of Appeals for the Ninth Circuit had held that the statute only authorized detention immediately upon the release of the immigrant from state custody.

In immigration cases that come before the Supreme Court, the issues raised generally boil down to the interpretation of the immigration statute, which is famous for its complexity, and, when appropriate, the deference properly afforded the agency’s interpretation. In the end, the proper textual interpretation of Section 1226(c) was at the center of the disagreement among the justices in the case of Nielsen v. Preap. The court found that the statutory language was clear and that resort to deference doctrines was unnecessary.

Justice Alito, joined in full by Chief Justice John Roberts and Justice Brett Kavanaugh, and in large part by Justices Clarence Thomas and Neil Gorsuch, held that the Ninth Circuit’s interpretation of Section 1226(c) was contrary to the plain text and structure of the statute. The court instead found that the statute allowed detention even if the U.S. government did not assume custody until after — indeed long after — release from state custody.

Telegraphing the final outcome, Justice Alito’s opinion began as follows:

"Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided ... Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism." (emphasis added).

Thus, in interpreting the statutory language, the court emphasizes at the outset the importance of the fact that the detention at issue involves immigrants who “committed certain dangerous crimes” and those with “connections to terrorism,” two particularly disfavored groups of noncitizens under the immigration laws.

In concluding that the plain language of Section 1226(c) allowed immigrant detention long after release from state custody, the majority engaged in a textual analysis that only a grammarian could love. The majority painstakingly reviewed the language of the statutory provision in question and emphasized that it applies to noncitizens convicted of crimes as well as relatives of terrorists.

Relying on, among other things, definitions from a couple of dictionaries, and a book on interpretation co-authored by the late Justice Antonin Scalia (A. Scalia & B. Garner, "Reading Law: The Interpretation of Legal Texts" (2012)), the majority found that the immigrants were subject to mandatory detention “even if (as with respondents) the Secretary did not arrest them immediately `when’ they were `released.’” Justice Alito justified that conclusion by noting that “respondents’ unsparing deadline will often be missed for reasons beyond the Federal Government’s control,” (citation omitted), such the refusal of state and local government to cooperate with federal immigration officials.

Among the cases that the majority relied on in support of its interpretation of 8 U.S.C. § 1225(c) was its decision in United States v. Montalvo-Murillo (1990).[5] In that case, the court held that “a provision that a detention hearing ‘shall be held immediately upon the [detainee’s] first appearance before the judicial officer’ did not ban detention after a tardy hearing.” (citation omitted).

The majority concluded that, because the statute was not ambiguous, the canon of construction calling for the interpretation of the statute to avoid constitutional questions did not apply. In reaching that conclusion, the court relied on Jennings v. Rodriguez, in which the court reached a similar conclusion in finding that the statutory provision in question did not provide for a periodic bond hearing for immigrants held in detention.

Going out of its way to emphasize that no constitutional questions were before the court, the majority concluded its analysis of the statute as follows: “While respondents might have raised a head-on constitutional challenge to § 1226(c), they did not. Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges — that is, constitutional challenges to applications of the statute as we have now read it.” Based on that invitation, expect future as-applied constitutional challenges.

For a plurality of the court, Justice Alito, joined by the chief justice and Justice Kavanaugh, relied on Jennings v. Rodriguez to conclude that the immigration statute allowed for judicial review. As in that case, the immigration statute’s framework could be challenged even though the statute bars review of discretionary judgments by immigration officials in individual removal cases. In addition, Justice Alito reasoned that, because there was at least one named plaintiff with a live case when the class was certified, the case was not moot.

Although agreeing with the majority’s analysis of Section 1226(c), Justices Thomas and Gorsuch disagreed on the issue of judicial review. Justice Thomas reiterated what he said in his concurrence in Jennings v. Rodriguez — that the court lacked jurisdiction of class actions under 8 U.S.C. § 1252(f)(l), which he reads as barring such review. Justice Kavanaugh “wrote separately to emphasize the narrowness of the case before us ...” He emphasized that the sole question before the court was the interpretation of the statute to determine whether the executive branch had “to immediately detain the noncitizen when the noncitizen is released from custody ..” (emphasis in original).

Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, dissented. As highlighted in news reports on the decision, Justice Breyer
firmly rebutted Justice Kavanaugh’s claim that the issue decided by the court was “narrow”:

"Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community. These aliens may then be detained for months, sometimes years, without possibility for release; they may have been convicted of only minor crimes ... Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible to receive a form of relief from removal ... Thus, in terms of potential consequences and basic American legal traditions, ... the question before us is not a 'narrow' one ... "

Justice Breyer’s dissent emphasizes that the language and structure of the statute, as well as the canon of constitutional avoidance, all undercut the majority’s interpretation of the statute. He emphasized the importance of the question because, under the majority’s interpretation, the immigrant would be detained without the opportunity to bond out of custody — and thus would be detained even if not determined to be a flight risk or a danger to the community.

Like the majority, Justice Breyer closely parsed the language of the statute. He, however, did not find the interpretation “plain” and reached a contrary conclusion. His interpretation was that “[t]he words `when the alien is released’ require the Secretary to detain aliens under subsection (c) within a reasonable time after their release from criminal custody — presumptively no longer than six months.”

Offering an interesting insight into the former law professor’s mind, Justice Breyer employed an analogy of a recipe for cooking an Angus steak to illustrate his point of statutory construction. Justice Breyer also would invoke the canon of constitutional avoidance to interpret the statute to avoid constitutional questions that might be raised in the event of an arrest years after release from state custody and the denial of a bond hearing. Justice Breyer concluded that “[i]n my view, the Court should interpret the words of the statute to reflect Congress’ likely intent, an intent that is consistent with our basic values ... I fear that the Court’s contrary interpretation will work serious harm to the principles for which American law has long stood.”

Nielsen v. Preap is but another step in the expansion of executive power over immigrant detention. The court so held in a time when the U.S. government is aggressively detaining immigrants and promises to do more. Although continuing that trend, the holding will not likely have a huge impact on immigration law and immigration detention.

As Justice Kavanaugh made clear, the court did not address the constitutionality of detention without the possibility of bond, an issue that it remanded to the lower court in Jennings v. Rodriguez. The constitutional question thus remains alive and likely will be before the court again. More generally, all of the justices carefully parsed the text of the statute and considered the statutory structure. They took the task of judicial review seriously. In that way, the court’s approach continues the court’s move toward the “normalization” of immigration law, applying ordinary methods to interpreting the immigration statute.

[1] https://casetext.com/case/nielsen-v-preap-2

[2] See, for example, Moncrieffe v. Holder, 569 U.S. 184 (2013) (vacating removal order based on conviction for possession of small amount of marijuana) https://www.law.cornell.edu/supct/cert/11-702.

[3] 503 U.S. 510 (2003) https://www.law.cornell.edu/supct/html/01-1491.ZS.html

[4] 138 S. Ct. 830 (2017) https://www.supremecourt.gov/opinions/17pdf/15-1204_f29g.pdf

[5] 495 U.S. 711 (1990) https://caselaw.findlaw.com/us-supreme-court/495/711.html

March 25, 2019

Chile and Migration: The Global Compact for Safe, Orderly and Regular Migration and More

[Cross-posted from Immigration Prof]

 

Last week, I got behind in my blogging while I was in Santiago, Chile, recruiting international scholars and students, presenting talks on immigration, and meeting with alums and friends of UC Davis School of Law. 

During my visit, it became apparent that immigration -- as well as the United States' college admissions scandal -- was a hot topic.  As discussed in this Migration Policy Institute report, Chile has experienced a national debate on immigration. In response to public concern with Haitian, Dominican, and other immigrants, new President Sebastián Piñera has proposed greater restrictions on immigration.  The consensus appears to be that the Immigration Act of 1975 needs to be reformed; however, the Chilean Congress has been unable to act.

Pinera

Chilean President Sebastián Piñera

Pontificia Universidad Católica de Chile

During my visit, I had the privilege of meeting with the deans and faculty at two amazing law schools.  First, I visited Pontificia Universidad Católica de Chile and lectured on judicial review and the U.S. immigration laws.  In this talk, I summarized recent developments in the Supreme Court's review of the constitutionality of the immigration laws and policies.  My ultimate conclusion is that the Court consistently engages in meaningful judicial review of the immigration laws. 

Chile law

Universidad de Chile law school

The next day, I visited the Universidad de Chile law school and delivered the following lecture:

The Global Compact for Safe, Orderly and Regular Migration: The United States and Chile, by Kevin R. Johnson. Remarks presented at the Universidad de Chile Law School, March 20, 2019

In December 2019, more than 150 nations approved the Global Compact for Safe, Orderly and Regular Migration  (Global Compact).  Building on the 2016 New York Declaration for Refugees and Migrants, the Compact continues the process of promoting cooperation, coordination, and dialogue on migration in the international community. It identifies a number of objectives and commitments, primarily directed at cooperation and coordination. The Compact also calls for, among other things, nondiscrimination against migrants and providing proof of identity to migrants in a state.

A number of nations, including the United States, Australia, Chile, and the Dominican Republic, declined to sign the Global Compact. As with other international arrangements, a major concern was that the Compact would result in the surrendering of national sovereignty over immigration. Immigration is a controversial -- indeed explosive -- issue in many nations and strong voices often advocate for national sovereignty and the exercise of power over immigration and immigration controls.

More generally, in the United States President Trump has expressed skepticism about international institutions, including and especially the United Nations. In responding to international trade, immigration, and foreign policy generally, the President has consistently and unequivocally emphasized “America First.”  That approach, of course, places primacy on national sovereignty and serves as a frame for all of the U.S. government’s relations with other countries.

To calm sovereignty concerns with the Global Compact, the Compact did not impose binding obligations on nations but was a non-enforceable promise to cooperate and coordinate migration policies. In fact, the Compact expressly recognized national sovereignty over immigration and enforcement. It specifically provides that:

"[t]he Global Compact reaffirms the sovereign right of States to determine their  national migration policy and their prerogative to govern migration within their jurisdiction, in conformity with international law. Within their sovereign jurisdiction, States may distinguish between regular and irregular migration status, including as they determine their legislative and policy measures for the implementation of the Global Compact, taking into account different national realities, policies, priorities and requirements for   entry, residence and work, in accordance with international law."

Global Compact, Paragraph 15

Reasons Some States May Have Declined to Join the Global Compact

Reasons beyond concerns with ceding national sovereignty also likely contributed to some nations declining to join the Global Impact. The following reasons may have contributed to the decision of the United States, to not sign the Compact:

Immigration Regulation Raises Sensitive Domestic Political Issues

Immigration touches on issues of language, culture, and the sense of national identity. Such issues are controversial in the United States. They also are generally thought of as a primarily domestic, not international, concern and the subject of intense internal debate.

The Omnipresent Concern with Mass Migration.

When it comes to immigration, nations in the developed world often worry about mass migration and see a need to exercise control over immigration, with the corollary need for limits on the number of immigrants coming into the country. Such concerns raise controversial economic, political, social, and cultural issues that affect all people of society. Concerns with mass migration in the United States have hindered efforts at domestic immigration reform. Such reform has been discussed for many years. That is true even though it is generally agreed that the current U.S. immigration regime requires reform. The United States has an antiquated immigration system created by the Immigration and Nationality Act of 1952, which was passed by Congress at a time when exclusion and deportation of communists was paramount. These are not the major immigration concerns of the 21st century. Although amended on numerous occasions, the INA remains the basic U.S. immigration law. 

Concerns with the Long Term Impacts of Previous Migration and Refugee Accords.

Some of the nations’ resistance to the Global Compact may be rooted in concerns with the impact of the implementation of previous international accords, such as the United Nations Convention on the Status of Refugees (1951) and the United Nations Protocol Relating to the Status of Refugees (1967) . Those treaties created powerful -- and binding on states -- international protections for noncitizens who flee persecution or have a well-founded fear of future persecution.

In the United States, the U.N. Protocol led Congress to pass the Refugee Act of 1980, which created the modern asylum system in the United States. Concerns with the numbers of asylum seekers in the United States have provoked concern and tough responses, including immigrant detention, family separation, and the return of Central American asylum seekers to Mexico. Such concerns may have contributed to the resistance to the Global Compact.

Inconsistency with Contemporary U.S. Immigration Enforcement Policies

Immigration policies in the United States today focus primarily on immigration enforcement. Besides not being crafted for the realities of modern migration pressures, the policies are not consistent with the humanitarian spirit of the Global Compact.

President Trump has spoken harshly of immigration and immigrants. He has bolstered immigration enforcement measures and has sought to restrict legal immigration. To that end, the Trump administration, among other things, has issued three versions of the Muslim ban, aggressively employed immigrant detention, and fervently advocated building a wall along the U.S./Mexico border. President Trump frequently declares that the nation’s southern border is in “crisis” and has talked about the “invasion” from the South. Such concerns almost certainly led to a general resistance in the United States to the call for migration cooperation in the Global Compact.       

President Trump also has specifically attacked Muslim, Mexican, Salvadoran, and Haitian noncitizens. The verbal attacks have translated into tough immigration enforcement measures directed at these groups. Although some of these measures have provoked controversy and been halted by the courts, many have gone into effect.           

The harsh tone combined with the tough enforcement measures in the United States have frightened immigrant communities, as well as people with affinities for those communities. Besides striking fear into immigrants, which have impacts on their well-being as well as their cooperation with government, the harsh rhetoric and attacks on immigrants has delayed indefinitely much needed congressional reform to the immigration laws.

The Need for International Cooperation

Global economic and political pressures fuel migration and affect many nations. No single nation can effectively address migration pressures and flows on its own. In the future, nations must recognize the following in addressing migration.

In addition, immigration law and policy affects the rights and well-being of human beings. Harsh policies adversely impact human lives. Nations must work to create humane, as well as manageable and efficient, immigration policies.

At the same time, migration of people from other countries bring changes to the receiving nations. Efforts need to be made to focus not on simply admission and removal but also on policies that facilitate the integration of immigrants into society.          

The Global Compact was designed to facilitate much-needed coordination and cooperation on migration matters. Multilateral work is much needed as nations around the world undoubtedly will continue to experience migration flows. Although some of the migrants are refugees fleeing civil strife or fearing persecution, migration also represents a response to economic opportunity, political freedoms, and family reunification.

Put simply, to effectively manage migration, the international community must work together. Building border walls between nations will not end immigration or the pressures for migration. Instead, international arrangements like the Global Compact offer the hope of the future – to effectively, efficiently, and humanely manage migration in the 21st century.

February 4, 2019

Immigration and Civil Rights in an Era of Trump

By Kevin Johnson

[Cross-posted from ImmigrationProf Blog]

The following is a lightly edited version of my Martin Luther King Jr. Lecture at Valparaiso University Law on January 23, 2019.

I am humbled, honored, and in, fact, awed by the opportunity to give a lecture named after Dr. Martin Luther King Jr. Some wonderful speakers, including my friend Angela Onwuachi-Willig, have delivered the lecture.

Located on a beautiful campus in a beautiful town, Valparaiso University School of Law has a long and illustrious history. As the website states, “law is more than a job; it is a vocation: a responsibility and opportunity to serve others.” These nicely put words concisely set an admirable goal for all of legal education.

Martin Luther King Jr., a civil rights icon, is not well-known for his positions on immigration. However, the principles for which his life stands can guide us in thinking about immigration law and its enforcement. Several principles, which I paraphrase here, struck me as particularly relevant:

  1. People should be judged by “the content of their character,” not “the color of their skin.”
  2. “The arc of moral universe is long but bends toward justice.”
  3. “I choose to give my life to those who have been left out.”

I have spent time considering how immigration is one of the civil rights issues of the new millennium. Please do not get me wrong. I in no way mean to suggest that there are no other civil rights issues. Criminal justice, voting rights, equal educational opportunities, and employment discrimination unquestionably are among those civil rights concerns that deserve our attention. I modestly assert that immigration is among the issues that deserve consideration.

The title of my remarks – Immigration and Civil Rights in an Era of Trump – were designed to afford me flexibility in what I talk about.  This is especially important because President Trump regularly has something new, novel, and newsworthy to say about immigration. Almost every day, it seems, we hear something new from the Trump administration about immigration. Indeed, as I deliver this lecture, the nation is in the midst of the longest shutdown of the U.S. government in U.S. history, a shutdown that centers on a dispute over whether billions of dollars of congressional funding should be provided for a wall along the U.S./Mexico border.

Immigration news from Washington, D.C. has been a constant since President Trump’s inauguration. Just a few months ago, President Trump threatened to issue an executive order ending birthright citizenship as provided by the Fourteenth Amendment. He also declared the “caravan” of migrants from Central America to be a national “crises” and “invasion.” Through a number of policy changes, the Trump administration has sought to remake the asylum system, with little regard to the rule of law. I could go on but you get the general idea.

President Trump’s immigration initiatives share two fundamental characteristics.

First, he consistently seeks to reduce immigration and specifically to reduce the number of immigrants of color coming to, and living in, the United States. These actions generally are contrary to the law prohibiting racial discrimination.

Second, despite the frequent claim that the administration is committed to simply enforcing the immigration laws, President Trump attacks judges who issue rulings with which he disagrees, calls for changes to our immigration laws that he claims are ridiculous, and all-too-often ignores the law. For example, President Trump, in my estimation, in many instances has sought to limit asylum eligibility in ways not permitted by Congress. To offer another example, few legal scholars believe that President Trump’s has the power call to abolish birthright citizenship. That proposal exemplifies what is becoming more and more apparent:  President Trump feels little need to adhere to the rule of law. This is especially hard for lawyers and law professors to accept.

In the Immigration Act of 1965, Congress amended the immigration laws to explicitly prohibit discrimination in the issuance of visas on the basis of race, sex, nationality, place of birth, or place of residence. Passed in the wake of the Civil Rights Act of 1964, the 1965 Act repealed laws mandating racial and national origin discrimination in the U.S. immigration laws. The momentum of the civil rights movement led by Dr. King transformed immigration law. In so doing, Congress established a blueprint for immigration diversity, allowing millions of people of color to immigrate to the United States. The nation saw a dramatic rise in immigration from Asia; U.S. law had barred Asian immigration from the late 1800s through the first half of the twentieth century.

The trajectory toward a more diverse nation, however, is likely to change due to a myriad of policies embraced by the Trump administration. Those policies can be aptly characterized as waging war on immigration diversity and the rule of law. President Trump’s immigration actions show a desire to change that diversity, to take the nation back to the past to a time when Asians were excluded, when Mexicans were deported with impunity.

President Trump’s racial goals should not be surprising. Unlike any president in modern U.S. history, he regularly makes racially-explosive comments about immigrants. Consider a few:

  •  
    • Mexicans are “rapists” and “criminals”;
    • Salvadorans are MS-13 gang members;
    • Muslims are “terrorists” who should be subject to “extreme vetting”; and
    • El Salvador, Haiti, and nations in Africa are “s***hole countries” and the United States should not be providing safe haven to citizens of those countries.

President Trump has followed up on the incendiary rhetoric with a number of policies, many of them in tension with, if not in outright violation of, the law. In sum, the Trump administration has taken some of the most aggressive immigration enforcement policies in modern U.S. history. The policies almost all aim to restrict noncitizens of color from immigrating to the United States.

I am working now on an article about what I characterize as the “new Latino repatriation.” It shows how many of the administration’s immigration measures in total replicate (1) the Mexican repatriation of the 1930s, in which state, local, and federal governments forcibly “repatriated” persons of Mexican ancestry, including U.S. citizens, to Mexico; and (2) “Operation Wetback” in 1954, a military-style effort to remove Mexican immigrants in the Southwest. Not coincidentally, President Trump has endorsed "Operation Wetback" -- without using its official name -- as a legitimate policy approach to manage migration today.

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

1.   The Travel Bans

Within days of his inauguration, President Trump issued an executive order that was intended to bar immigrants from a number of predominantly Muslim nations from entering the United States. The original travel ban was not carefully done and included obvious legal flaws. It, for example, was not clear whether it applied to lawful permanent residents. When the courts enjoined the first travel ban from going into effect, President Trump issued a revised version. The courts struck down the second version as unlawful and, in no small part, because of the President’s anti-Muslim statements. Although a 5-4 Supreme Court in Trump v. Hawaii upheld the third draft of the ban, four Justices would have concluded that the executive order was motivated by anti-Muslim animus, not national security concerns.

2.    “Chain Migration” and Reforming Legal Migration

President Trump has called for ending “chain migration” and dramatically restricting family-based immigration to the United States. In that vein, he has expressed support for the RAISE Act, which would reduce legal immigration by one-half through reducing family-based immigration. That change would have the greatest impact on prospective immigrants from Mexico, India, and China, the nations that today send the most immigrants to the United States. And cutting legal immigration would likely increase pressures for undocumented migration, as many noncitizens without lawful options for rejoining family will seek to rejoin family members without authorization.

The Trump administration also has sought to restrict legal immigration with a proposed rule that would tighten the “public charge” exclusion. The result is that many immigrants now decline to seek public benefits to which they are lawfully entitled. The rule also would limit migration of poor and working people to the United States, an outcome contrary to the “huddled masses” welcomed in the famous inscription on the Statue of Liberty. In a similar vein, the Trump administration has drastically cut the numbers of refugees admitted into the United States each year.

3.    “Zero Tolerance” Policies

The Trump administration’s “zero tolerance” policies have targeted migrants from Mexico and Central America. In response to Central Americans seeking asylum, the Trump administration adopted a harsh detention and family separation policy, blaming the policy on the Democrats and the courts.  A public outcry and litigation compelled the Trump administration to end family separation.  As the 2016 midterm elections neared, similar rhetoric was used against asylum seekers from Central America – known as the “migrant caravan” – who were in route to the U.S. border.  Working to build a “crisis” mentality among the general public, President Trump has been waging war on asylum.

a.    Central American Asylum Applicants

Courts have played important roles in halting the administration from engaging in racially charged policies designed to stop Latinx families from immigrating to the United States. In particular, the courts have upheld the rights of immigrant children subject to detention under what is known as the Flores settlement, to which President Clinton's Justice Department agreed in 1997.  The Trump administration has railed against compliance with the settlement.  It has proposed to undo the Flores settlement so that the administration can indefinitely detain immigrant children and their families.

Other presidents have taken steps to deter Central American asylum seekers from seeking relief in the United States. But none have taken measures as harsh as those adopted by the Trump administration.

b.   Sanctuary Cities

The Trump administration has challenged “sanctuary” states and cities for refusing to fully cooperate with the U.S. government in immigration enforcement. Although the courts have for the most part blocked those efforts, the administration has tried to halt the flow of federal funds to “sanctuary” cities.   Seeking to capitalize politically on tragedies, President Trump has been quick to blame sanctuary jurisdictions for crime.  It is odd that conservatives -- the traditional defenders of state and local rights when it comes to civil rights -- today challenge local authority and autonomy with respect to immigration and immigrants.

c.    DACA

The Trump administration has sought to eliminate the Obama administration's Deferred Action for Childhood Arrivals (DACA) policy for undocumented youth.  The policy benefited hundreds of thousands of young undocumented immigrants, with more than 80 percent from Mexico and Central America. Courts have enjoined the rescission of DACA.

d.    TPS

The Trump administration announced the end of Temporary Protected Status for Haitians, Salvadorans, Nicaraguans, Hondurans and nationals of other developing nations. TPS allows nationals of nations hit by mass violence or natural disaster to remain temporarily in the United States.  More than 200,000 Salvadorans are threatened with the loss of TPS relief. To this point, courts have enjoined the end of TPS for nationals of El Salvador and other nations..

e.    Removals           

The Trump administration has aggressively increased removals and adopted approaches that would ensure that more than 95 percent of the noncitizens removed are from Mexico and Central America.  Although many of the crime-removal programs are being carried forward from the Obama administration, the new administration has expanded the efforts and the crimes for which removal will be sought.

****

These policies together would significantly reduce diversity in the number of immigrants admitted to, and permanently reside, in the United States. Importantly, such policies violate the spirit if not the letter of the 1965 amendment to the immigration laws and Congress’s goal of promoting diversity in immigration.   The courts have halted many of the more egregious violations of the law.  The defunding of sanctuary cities has been halted.  DACA’s rescission has been halted. Stripping of TPS has been stopped.  Although the travel ban eventually went into effect, litigation refined and narrowed the ban.

Conclusion

Courts time and again have prohibited the Trump administration from pursuing immigration policies that violate the law. Legal and political attention must continue to be paid to these policies in order to prevent the country from returning to its pre-1965 law that fostered predominantly white immigrants white nation.  Put simply, the unlawful war on immigrant diversity should not be permitted to continue. Political organization has been one response to the Trump immigration enforcement measures.  The rise and fall of DACA energized immigrants’ rights activism and marked the ascendance of a political movement. That may be one of the most important long term impacts of DACA.  An “Abolish ICE” movement has emerged.  Congress has the opportunity to act to reform and improve the immigration laws.

I think that Martin Luther King Jr. would condemn the unjust immigration initiatives of the Trump administration.  He would object to judging immigrants by the color of their skin, not the content of their character.  He would see the current initiatives as contrary to the arc of justice.  Last but not least, Dr. King would call for us to protect immigrants who are “left out” and deserve our protection.

January 14, 2019

President Trump Again Calls for Billions for a Wall and for Congress to Address the 'Border Crisis'

By Kevin R. Johnson

[Cross-posted from ImmigrationProf]

Last night (Jan. , President Trump delivered a prime time speech titled "Humanitarian and National Security Crisis on the Southern Border."  Here is the textHere is the CNN "fact check." 

It was President Trump's first prime time speech from the Oval Office [watch here].  The President apparently sought to build support for his adamant stand to force Congress to fund the "border wall," a position that has led to the shutdown of the federal government. 

I eagerly watched the speech in real time and was struck by President Trump's flat and relatively subdued reading of the remarks -- remarks that differed little from his general stump speech on "the wall," the looming border "crisis, and immigration generally.  The speech was a relatively short 8-9 minutes. 

President Trump discussed what he characterized as "uncontrolled illegal migration."  He repeated the claim that undocumented immigration most hurts African American and Hispanic workers, which contrasts sharply with his general insensitivity toward African American and Latino civil rights.  The President Trump also emphasized that drugs flow across the border that kill millions of Americans annually and cost the nation billions of dollars. 

In building up the sense of crisis, the President mentioned "criminal gangs" and human traffickers. Ultimately, Congress must address this "crisis of the heart" and "crisis of the soul."  

President Trump invoked various crimes committed by undocumented immigrants, including the recent tragic killing of a sheriff in the Central Valley of California, and MS13.  He rhetorically asked "how much more American blood must we shed?"

President Trump stated that he has made a proposal to Congress that would end the "crisis."  The proposal -- explained in this fact sheet -- would add resources to border enforcement, including $5.7 billion for a "steel barrier" along the U.S./Mexico border.  He sees the barrier and heightened enforcement measures as "just common sense."

President Trump went on to criticize the Democrats for the government shutdown and depriving the government of the resources to do what is needed to ensure border security.  His is the "only solution" that defends the borders and will reopen the federal government.  To facilitate matters, President Trump said that he would invite congressional leaders to meet. 

After President Trump's speech, House Speaker Nancy Pelosi (D-CA) and Senate Democratic Leaders Chuck Schumer (D-NY) responded. Watch the video.  They blamed President Trump for the shutdown and for attempting to create a climate of "misinformation, malice, and fear" surrounding immigration and the border.  Pelosi emphasized that the migrant children at the border "are not a security threat but a humanitarian challenge."  Schumer stated that President Trump's attempt to concoct a crisis was an effort to "divert attention" from his failing government.

After listening to President Trump and the Democratic response, I found myself uncertain about the prospects for coming to an agreement that will allow for a reopening of the U.S. government.  The President is not moving.  The Democrats are not moving.  Only time will tell where the nation goes from here.  Perhaps it has been said too often in the first years of the Trump administration but it does seem as if we are in uncharted waters.  And no one can say what lays ahead.

UPDATE (4:15 PST Jan. 9): President Trump in his speech talked of meeting with Democratic leaders.  It appears that the meeting did not go well as the dueling speeches did not leave much room for negotiation.  According to CNN, President Donald Trump walked out of discussions to end the government shutdown, calling the talks with congressional Democrats "a total waste of time."

 

January 2, 2019

Top 10 immigration stories of 2018

By Kevin R. Johnson

[Cross-posted from ImmigrationProf]

Trump

1. President Donald J. Trump

Day in and day out in 2018, President Trump was at the center of the nation's immigration news.  Building on his immigration policies during his first year as President, Trump continued to push the most aggressive set of immigration enforcement measures of any modern U.S. President.  Indeed, he ended the year on a high profile note.  When Congress refused to meet his demand for $5 billion in funding for a wall along the U.S./Mexico border, President Trump was willing to shut down the entire U.S. government at year end.  As of this writing, there is no end to the shutdown in sight. 

From day one of his campaign for the presidency, Trump has pushed the border wall.  And nothing has changed.  Earlier this month, the President tweeted the image below of a design for the wall, remarking: "Our Steel Slat Barrier which is totally effective while at the same time beautiful."

Detention, including the family separation policy discussed separately below, has been one of the focal points of the Trump administration's immigration enforcement policy.  The conditions of detention have been under fire.  That is likely to continue because, in December, two children in immigrant detention died, provoking controversy and concern.

The Trump administration's initiatives are too many to list here.  Still, a few are worth highlighting.  The Trump administration announced the end of Temporary Protected Status for approximately 200,000 Salvadorans.  The administration also stripped TPS status from Hondurans, Nicaraguans, Sudanese, and Haitians.  It also proposed tightening the "public charge" rule for admissions and limiting eligibility to asylum seekers to those who presented themselves at ports of entry.  The Department of Commerce's proposed a citizenship question on the 2020 Census provoked controversy and litigation.

2. U.S. Government Shutdown Over Border Wall

With Congress and the President at an impasse over border wall funding, the U.S. government suffered a partial shutdown.  There also was an earlier shutdown over immigration.  Although the news was jolting in the beginning, the nation handled the holidays well-enough without a budget and a federal shutdown.

A two-year-old Honduran asylum seeker cries as her mother is searched and detained near the U.S.-Mexico border (John Moore/Getty Images )

3. Family Separation Policy

To deter Central Americans, including many women and children fleeing rampant gang and other violence, from coming to the United States, the Trump administration adopted a policy of separating parents and children  in immigrant detention.  The family separation policy provoked mass protests and bipartisan resistance.  Pictures like the one above galvanized the nation.  Ultimately, President Trump ended family separation.  But his administration took months to reunite families.

=caravan

Central American immigrants take part in a caravan heading to the United States on the road linking Ciudad Hidalgo and Tapachula, Mexico, on October 21, 2018. Pedro Pardo / AFP / Getty

4.  The Caravan

Over the year, President Trump on several occasions attacked the "caravan" of Central Americans coming to the United States.  Photos of the caravan provoked concern.  Republicans, including President Trump, used the specter of "the caravan"  to build support for extreme immigration enforcement measures.  President Trump characterized the caravan as an invasion and tried to use it in an attempt to spark a Republican comeback in the midterm electionsMission was not accomplished and the Democrats regained control of the House!

 

 Sct

5.  Supreme Court

The Supreme Court continued its steady diet of  immigration cases and immigrants continued to win more than they lost.  In the 2018 Term, the Court struck down as unconstitutional two provisions of the immigration laws.  At the same time, in a 5-4 vote, the Court upheld the third draft of the "travel ban" in Trump v. Hawaii

This Term, the Court heard arguments in an immigrant detention case.  The Trump administration has made detention a core part of its overall immigration enforcement strategy.

More recently, the Court in December refused to stay an injunction barring implementation of President Trump's new restrictive asylum policy.

At some point in the future, the Court will likely decide whether the Trump administration should be permitted to rescind DACA, which to this point been enjoined by three federal courts.  See below.

330px-Jeff_Sessions _official_portrait

6.  Jeff Sessions Steps Down as Attorney General

Attorney General Jeff Sessions was an immigration hawk and Trump loyalist.  Among other things, he oversaw efforts to pressure immigration judges to close open cases and narrow asylum eligibility.  Sessions also took on -- mostly losing -- efforts to fight "sanctuary" states and cities.  Because of President Trump's unhappiness with Sessions over his recusal in the Robert Mueller investigation,  Sessions was forced out.  He took so many insults and barbs from the President that some Democrats almost felt sorry for him.

7. The Rescission of DACA

In September 2017, Attorney General Sessions announced the rescission of DACA.  As I have written, the rise and fall of DACA will likely affect the future of immigration law.  Three courts have enjoined the rescission of the policy and Ninth Circuit affirmed an injunction.  It may take a while but the Supreme Court ultimately will likely decide the fate of the DACA rescission.

8.  Midterm Elections

Despite President Trump and others seeking to make immigration enforcement the central campaign issue, the Republicans kept the Senate but lost the House.  The new Democratic House is likely to put the administration, and its immigration policies, under scrutiny.

330px-Associate_Justice_Brett_Kavanaugh_Official_Portrait

9.  Brett Kavanaugh is confirmed as a Justice on the Supreme Court.

It was not pretty but the Senate confirmed conservative Brett Kavanaugh as an Associate Justice on the Supreme Court.  Given his record on the U.S. Court of Appeals for the District of Columbia Circuit, which does not hear many immigration cases, it is hard to predict how he will approach immigration cases.  With a limited record on immigration, there are only hints of his views on the topic, including some from dissents in cases involving a teen immigrant detainee seeking an abortion and an immigration employment case.

10.  Death on the Border Continues

Maybe this does not make the headlines, but deaths of migrants on the U.S./Mexico border continue.  Increased enforcement in major border cities has resulted in migrants traveling through mountains and deserts where they are more likely to die.

Death on the Border: The Thousands of Bodies Along the US-Mexico Border

The death toll mounts but nothing seems to happen.  Is there anyone out there?

HONORABLE MENTION

UC_Berkeley_School_of_Law_logo.svg

Boalt Hall Changes Name:  Yes, this has an immigration angle.  UC Berkeley School of Law has long gone by the name "Boalt Hall."  It was named after John Boalt, who  published an anti-Chinese screed at the height of the Chinese exclusion era.  A committee recommended a name change and UC Berkeley School of Law, or Berkeley Law, is now the official name of the school.  Here is the Berkeley Law explanation of the name change.

December 10, 2018

Trump must obey decades-old asylum law

By Kevin R. Johnson

[Cross-posted from the Sacramento Bee]

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

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

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

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

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

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

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


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

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

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

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

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

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

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


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

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

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

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

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


Read more here: https://www.sacbee.com/opinion/op-ed/article222580505.html?fbclid=IwAR3ObPmigzYsv1jcxlOfH1sAvBRCew1YOHYaBhJqEO0uC3v0rt3b97-4HAY#storylink=cpy
November 2, 2018

Trump is not above the law

By Kevin R. Johnson

[Cross-posted from the Daily Journal]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

October 15, 2018

Preap High Court Argument Focused on Immediacy of 'When'

By Kevin R. Johnson

[Cross-posted from Law360]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

August 6, 2018

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

By Kevin R. Johnson

[Cross-posted from The Conversation]

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

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

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

So what was the Flores case about?

Case took years

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

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

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

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

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

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

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

July 30, 2018

Back to the Future?

By Kevin R. Johnson

[Cross-posted in Frank Essays]

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

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

Immigrants from Latin America

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

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

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

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

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

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

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

Deportations

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

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

Raids

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

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

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

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

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

Detention

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

Border Enforcement

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

Legal Immigration

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

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

Conclusion

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

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