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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. 


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. . . ."   


November 30, 2017

New Casebook by Hing, Chacón, and Johnson: Immigration Law and Social Justice

[Cross-posted from Immigration Prof Blog.]

We are happy to announce the publication of our new casebook: Immigration Law and Social Justice, published by Wolters Kluwer, Aspen Publishers.

We are presenting this casebook on immigration law and policy from a social justice perspective. We believe that most law students interested in taking a course on immigration law have a social justice/public interest motivation. We think you are interested in representing immigrants facing deportation or who may fear deportation to their home country for social, economic, or political reasons. You also likely have a strong interest in the public policy debate over immigration visa reform, enforcement, or legalization because of the injustices you sense in current policies. Many instructors who teach immigration law (regular faculty members and adjunct professors) also come from a pro-immigrant perspective that regards the practice of immigration law squarely within social justice/public interest practice. We hope this casebook provides materials and a format that will enhance the classroom experience for students and instructors who approach the topic from that perspective.

The content and organization (outlined in the table of contents) is broad and contains new topics such as detention, public interest/rebellious lawyering theories, lessons for public interest lawyers, and background on migration, globalization, criminalization, and racialization of immigration law. Our goal is to inspire our public interest students, while providing a solid way to analyze immigration law through a political and social lens and the foundation to practice effectively. Our pedagogy combines standard cases, but also stories of the lives of immigrants, transcripts, training manuals, academic articles, news articles, and other tools that social justice lawyers use. Our rationale in editing cases is to hone in on the parts of the cases that are necessary for an understanding of the court's rationale and some aspects of important dissenting opinions.

We know that most of you come to the course already inspired to do good, socially-inspired work. Much of what has evolved within the world of U.S. immigration law and policy will disappoint and leave you upset. But hopefully, we have asked the right questions and pointed in particular directions that can help us takes some steps forward in achieving justice for immigrants, refugees, and their families.

You can download a detailed outline of the book's contents and the introductory chapter here.

The book can be ordered here.

Thank you.

Bill Ong Hing, Professor of Law and Migration Studies, University of San Francisco
Jennifer M. Chacón, Professor of Law, University of California, Irvine
Kevin R. Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and
Chicana/o Studies, University of California, Davis


November 2, 2017

California Dreaming? The Integration of Immigrants into American Society

By Kevin R. Johnson

[Cross-posted from Boom California]

Immigrants, including undocumented immigrants, are unquestionably members of our communities across the United States. Currently, roughly eleven million undocumented immigrants live and work in this country.[1] Employers demand their labor, and immigrants want the work. Nonetheless, the people of United States have long been ambivalent about immigrants. Even in California, now viewed as a pro-immigrant bastion, more attention historically was given to reduce the immigrant population rather than to facilitate the integration of immigrants into American social life.

Consider one stunning example. California voters in 1994 by a 2-1 margin passed an immigration milestone, Proposition 187,[2] known by its supporters as the “Save our State” initiative. The initiative would have banned undocumented students from public schools, required police to report undocumented immigrants to federal authorities, and denied undocumented immigrants access to nearly every state public benefit programs. The California legislature subsequently passed a series of laws of the same ilk, including a particularly noxious one that prohibited the issuance of driver’s licenses to undocumented immigrants (even though there was no evidence of any safety or security problems with the state’s long history of licensing—and safety-testing—undocumented drivers).

With its widely publicized Proposition 187, California unfortunately proved to be a trendsetter for the nation. Following the initiative’s lead, Congress’ 1996 welfare reform legislation stripped many legal immigrants of federal public benefits.[3] More than a decade later, a number of other states, including Alabama, Arizona, Georgia, and South Carolina, passed tough immigration enforcement laws that were, in important respects, similar to Proposition 187.[4]

As Bob Dylan famously said: the times, they are a changing’. Indeed, we are witnessing nothing less than a sea change in state and local policy directed at immigrants in the United States and California again is at the forefront. However, the current trajectory in sub-federal immigration policy—pro-immigrant integration, not pro-immigration enforcement—is dramatically different than it was in the heyday of Proposition 187. Ironically enough, the nation has President Donald Trump, an immigration hawk like no other, to thank.

California’s Changed Responses to Immigrants

Responding to Trump: California Seeks to Promote Immigrant Integration

As promised in the 2016 campaign, President Trump from his first days in office pursued aggressive immigration enforcement measures, ranging from executive orders banning travel from predominantly Muslim nations to mass deportations to announcing steps toward building a wall along the U.S./Mexico border and threats of even greater enforcement efforts. Those steps provoked an immediate and inspired response from many state and local governments—and especially from California. Governor Jerry Brown, Attorney General Xavier Becerra, and Senate President pro Tem Kevin de Leon, led the opposition to the Trump administration’s call for ever-greater immigration enforcement. The resistance has been fueled in no small part by the growing awareness among California lawmakers of the need for increased legal protections for immigrants, among the state’s most vulnerable residents, from the Trump immigration onslaught. The reaction is rooted in notions of fundamental fairness and the firm belief that the aggressive immigration enforcement agenda embraced by the Trump administration threatens to tear families apart, harm communities, and sow widespread human misery, all in the name of “enforcing the law.”

Abandoning the punitive approach toward immigrants exemplified by Proposition 187, California for more than a decade has been at the forefront of taking steps to more fully integrate undocumented immigrant residents into the social fabric. Consider just a few contemporary examples. In 2001, the California legislature passed Assembly Bill (AB) 540, a path-breaking law that allows undocumented immigrants to pay in-state fees at California community colleges and universities.[5] This law, which represents a meaningful step toward greater educational access for all residents, commenced a trend among the states. Several years later, the legislature went further and passed the California DREAM Act, which made undocumented college students eligible for state scholarships to help them pay for their education.[6]

Not limiting its efforts to higher education, the California legislature took a number of other steps to promote the integration of the state’s immigrant population. Seeking to facilitate the trust of immigrants in local police officers (who, in turn, need the cooperation of immigrants, and all members of the community, to most effectively protect the public safety), the legislature in 2013 passed the TRUST Act,[7] which restricts state and local cooperation with federal immigration enforcement authorities. Among other things, it prohibits the detention of immigrants longer than required by law so that federal officers can, if they so desire, take the noncitizens into custody. The TRUST Act represented a response to the U.S. government’s hyper-aggressive Secure Communities program,[8] which greatly expanded the criminal justice removal pipeline for immigrants who had minor (as well serious) brushes with the law and directly resulted in the deportation of hundreds of thousands of people a year. In addition, after considerable debate and years of grassroots activism, the California legislature restored driver’s license eligibility for undocumented immigrants,[9] a significant practical step toward allowing undocumented immigrants to participate more fully in economic and social life, reducing fears of removal due to something as mundane and ordinary as operating a motor vehicle. Showing just how far the state had come from the dark days of Proposition 187, the California Supreme Court in 2014 ruled that a California law allowed undocumented immigrants to be licensed to practice law.[10]

In response to the Trump administration’s strident immigration enforcement agenda, the California legislature is active about taking steps to restrict state and local cooperation with federal immigration enforcement. Indeed, the legislature sought nothing less than to declare California to be a “sanctuary state,” a bill (SB 54) that Governor Jerry Brown signed 5 October 2017, which takes effect January 2018.[11]

Other state and local efforts to facilitate the integration of immigrants into civil society, which are wholly consistent with federal law, might include, but are not limited to the following:

  1. Pursuing additional policies that encourage the cooperation of immigrants with criminal law enforcement authorities;
  2. Ensuring adequate access to English-as-second-language programs so that immigrants are better able to acquire English language skills and better assimilate into U.S. society;
  3. Providing that immigrants, including undocumented immigrants, are generally eligible for state and local licenses necessary to engage in certain professions and occupations (from building contractors to hair dressers) and more fully participate in the American economy; and
  4. Making noncitizens eligible for public benefits programs that are part of the economic safety net for other residents.

Recent years have seen the emergence of tensions between the federal, state, and local governments about immigration enforcement and immigration policy. While state and local governments increasingly seek to protect their immigrant residents, President Trump has disparaged many of those state and local efforts as “sanctuary” policies that undermine the enforcement of U.S. immigration law. His administration has gone so far as to threaten to eliminate federal funding to “sanctuary cities.”

We should not forget that state and local governments play important roles in ensuring the inclusion of all residents, including immigrants. Such efforts include steps by state and local governments to promote immigrant integration. State and local measures that move us toward a society in which immigrants are full members of the community, not marginalized peoples living in the shadows, deserve support and encouragement. The Trump administration unfortunately attacks, disparages, and derides those laws and policies.

Why California’s Immigration Turnaround?—The Response to Proposition 187

One might wonder on the issue of immigration policy from 1994 to 2017 what explains the stark political turnaround in California. The short answer is that Proposition 187 changed everything.

First of all, passage of the anti-immigrant milestone spurred a generation of engaged political activism. In Proposition 187’s wake, naturalization rates for immigrants spiked and hundreds of thousands of immigrants became newly-minted U.S. citizens (and part of the electorate). In turn, increasing numbers of Latina/o citizens voted, including recently naturalized ones. Not surprisingly, the number of Latina/o elected to the California legislature grew significantly and Republican legislators slowly but surely dwindled in numbers. The legislature’s racial and political composition changed with the election of increasing numbers of Latina/os and Democrats came to dominate the legislature. In fact, California Pete Wilson, who won re-election largely due to his ardent support for Proposition 187, was later effectively exiled, as it were, from California politics, having forever alienated the growing Latina/o electorate.

When all was said and done Proposition 187 dramatically changed the trajectory of California law and policy toward immigrants, as well as the state’s entire political landscape. One can only wonder whether President Trump’s immigration enforcement priorities might ultimately result in a similar political reaction on a national scale.

Providing Counsel to Immigrants Facing Removal

The specter of greatly increased removal efforts by the Trump administration has provoked great fear in immigrant communities. The “Trump effect” has led states and local governments to adopt laws and policies that protect immigrant members of communities and promote their integration. Some state and local governments have looked to provide the most fundamental protection for immigrants resisting removal—ensuring access to legal representation.

Having campaigned on a platform that included tough immigration enforcement, Donald Trump did not surprise most Americans when soon after his inauguration he announced aggressive immigration enforcement measures, including four executive orders on immigration in his first three months in office. States have taken a number of measures intended to moderate the adverse impacts of those tough policies. More are under consideration, including proposals to provide greater access to counsel to immigrants facing removal from the United States.

Unlike the Fifth Amendment’s guarantee of counsel to criminal defendants, the U.S immigration laws fail to ensure that immigrants, legal and undocumented, have an attorney in removal proceedings, which are classified as civil in nature.[12] Similar to the movement in the twentieth century to ensure that indigent criminal defendants are provided with attorneys, an organized movement has emerged to ensure legal representation for all immigrants facing removal from the United States.

Guaranteed representation for immigrants facing removal is only fair. As the Supreme Court has emphasized, a deportation hearing can “result in the loss of all that makes life worth living.”[13] That alone suggests the great need for guaranteed representation for immigrants facing deportation. Moreover, the nature of the U.S. immigration laws, which are rivaled for complexity only by the Internal Revenue Code, makes an attorney essential. In addition, the vast majority of immigrants, due to language and culture differences, cannot reasonably be expected to fully comprehend the many nuances, legal and otherwise, of the removal process.

The bottom line is that, absent legal representation, an immigrant facing removal faces nearly insurmountable odds in staving off deportation. Not surprisingly, the available evidence in fact demonstrates that represented immigrants successfully resist removal at much higher rates than unrepresented immigrants.[14]

Scholars for years have argued for guaranteeing counsel to immigrants facing removal from the United States.[15] In direct response to the Trump administration’s tough immigration stances, state and local governments in growing numbers are beginning to allocate funds for attorneys to represent immigrants facing removal.[16] For example, the California budget approved in 2017 provides $15 million to help secure counsel for immigrants facing deportation.[17]

One Model: The University of California’s Immigrant Legal Services Center

For several years running, the Obama administration set records by removing some 400,000 immigrants a year. Young undocumented immigrants were among the immigrants caught in the crossfire.

To begin addressing pressing immigrant student needs, the University of California (UC) in 2015 created a form of student services never before seen in higher education.[18] In establishing the UC Undocumented Legal Services Center (later renamed the UC Immigrant Legal Services Center),[19] the University demonstrated how it can serve all students—including immigrants—and the greater community of the state of California.

Created by UC President Janet Napolitano, former Secretary of the Department of Homeland Security who was responsible for enforcement of the U.S. immigration laws, the Immigrant Legal Services Center serves the unique legal needs of undocumented students and their parents. Housed at the UC Davis School of Law, home of a well-established Immigration Law Clinic[20] as well as a group of influential immigration law scholars, the Center provides legal services to undocumented students and their families on the UC campuses at Irvine, Merced, Los Angeles, Riverside, San Diego, San Francisco, Santa Barbara, and Santa Cruz. (The only other UC campus, UC Berkeley, has its own legal assistance program for immigrants.)

One critically important feature of the center’s representation warrants explanation. The idea behind extending services to the parents of undocumented UC students involves a well-researched common sense phenomenon: students are in a significantly better position to succeed academically if they do not fear that their parents are at risk of removal.

The Center has plenty of potential clients, with more coming in with every new entering class. Several hundred undocumented students are enrolled at each of the campuses of the University of California system. Many of them are from Mexico or Central America. However, the University has undocumented students literally from around the world, including Asia, Africa, and Europe.

The efforts of the UC Immigrant Legal Services Center immeasurably benefit undocumented students and their families. Many of the students are eligible for relief under the U.S. immigration laws that stabilize their daily lives and, as a result, help to improve their academic success.

At the time that the Center was founded, attorneys expected to focus on assisting students with applications for relief under the Obama administration’s Deferred Action for Childhood Arrivals program, which was originally created in 2012 and dismantled by President Trump in 2017.[21] However, the legal work proved to be much more varied than initially anticipated. Some students and their family members are eligible for immigrant visas as well as citizenship. They need legal help to identify the potential ways of regularizing their immigration status and to navigate the complex, and often lengthy, bureaucratic process. Many students understandably want to regularize their immigration status so they are able to come and go from the United States and thus can participate in study abroad programs just like many other college students do. Some students are eligible for various forms of relief from removal under the U.S. immigration laws but need legal assistance to identify and collect the information necessary to make their case.

The Quest for Justice for All (Including Immigrants)

As with the efforts to provide legal representation, state and local governments must focus on how to best address the needs of all residents, including immigrants, and strive to ensure that immigrants are treated as full members of society. One important way to do so is provide attorneys to represent immigrants facing removal from the United States. As has been discussed, state and local governments are making efforts to do so. California has been at the forefront of the movement but the state of New York and many cities, including Austin, Baltimore, Chicago, New York City, and Washington D.C., as well as Sacramento, Los Angeles, and San Francisco, have already taken steps to assisting immigrant residents secure representation.

Through measures to help ensure counsel for all immigrants facing deportation, we see public support for a more procedurally fair and legitimate system—and one consistent with the ideal of “justice for all.” Through providing legal representation and taking other measures to protect immigrant residents, state and local governments are pursuing their proper role of facilitating the integration of immigrants into civil society. In the past, popular immigration enforcement laws, such as Proposition 187 and Arizona’s infamous SB 1070 that the Supreme Court invalidated in large part,[22] which made state and local police central to immigrant enforcement, had the opposite effect. Far from promoting immigrant integration, these laws have de-stabilized immigrant communities and marginalized, not integrated, significant numbers of state and local residents.

Lawyers unquestionably can help to protect the rights of immigrants. Other state and local immigrant integration measures can as well. In pursuing such measures, California hopefully can provide guidance to the nation and encourage other state and local governments to pursue immigrant integration strategies.

In the long run, however, state and local governments can only do so much to reduce the harsh impacts of the U.S. immigration laws on immigrants. Fundamental change to those laws is necessary to bring full justice to immigrants. To that end, Congress at some point must overhaul the antiquated Immigration and Nationality Act of 1952, which was forged at the height of the Cold War and is not well-suited to addressing the nation’s 21st century immigration needs. In such comprehensive reform efforts, the labor needs of the United States and the precarious status of undocumented immigrants living here will need to be addressed.



[1] Jeffrey S. Passel and D’Vera Cohn, “Overall Number of U.S. Unauthorized Immigrants Holds Steady Since 2009,” Pew Research Center, 20 September 2016, available at

[2] California Proposition 187, Illegal Aliens Ineligible for Public Benefits (1994), Ballotpedia, available at,Illegal_Aliens_Ineligible_for_Public_Benefits(1994).

[3] Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105.

[4] The immigration enforcement laws of these other states suffered the same fate as Proposition 187: the courts struck them down. See, for example Arizona v. United States, 567 U.S. 387 (2012); United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012); Georgia Latino Alliance v. Human Rights v. Deal, 691 F.3d 1250 (11th Cir. 2012).

[5] California Assembly Bill 540, Cal. Legis. 2000-01 (codified at Cal. Ed. Code § 68130.5).

[6] California Assembly Bills 130, 131, Cal. Legis. 2010-11.

[7] California Assembly Bill 4, 2013 Cal. Stat 4650 (codified at Cal. Gov’t Code §§ 7282-7282.5).

[8] Due to state and local resistance to the impacts of Secure Communities, President Obama discontinued that program in November 2014; President Trump, however, reactivated it in January 2017. U.S. Immigration and Customs Enforcement, Secure Communities, available

[9] AB-60 Driver’s License in California, DMV.ORG, available at

[10] In re Garcia, 58 Cal. 4th 440 (2014).

[11] Jasmine Ulloa, “California becomes ‘sanctuary state’ in rebuke of Trump immigration policy,” Los Angeles Times, 5 October 2017,

[12] Immigration and Nationality Act § 292, 8 U.S.C. § 1362 (providing that noncitizens can be represented in removal proceedings “at no expense to the Government”).

[13] Bridges v. Wixon, 326 U.S. 135, 147 (1945) (citation omitted) (emphasis added).

[14] Ingrid V. Eagly and Steven Shafer, “A National Study of Access to Counsel in Immigration Court,” University of Pennsylvania Law Review 164 (2015): 1.

[15] See, for example, Kevin R. Johnson, “An Immigration Gideon for Lawful Permanent Residents,” Yale Law Journal 122 (2013): 2394; Mark Nofieri, “Cascading Constitutional Deprivation: The Right to Be Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings,” Michigan Journal of Race and Law 18 (2012): 63

[16] Jennifer M. Chacón, “Privatized Immigration Enforcement,” Harvard Civil Rights-Civil Liberties Law Review 52 (2017): 1, 6 (noting that “some states and localities with large numbers of noncitizen residents have begun to provide funding for immigrant representation”).

[17] Katy Murphy, “California Budget Deal Includes Deportation Defense Fund for Undocumented Immigrants,” San Jose Mercury, 16 June 2017,

[18] Kevin R. Johnson, “New UC Center Serves a Most Vulnerable Student Population: A New Trend in Higher Education?” Hispanic Outlook in Higher Education, 14 December 2015, p. 24.

[19] UC Immigrant Legal Services Center, available at

[20] For a discussion of the creation of the clinic and its pedagogical and social justice goals, see Kevin R. Johnson and Amagda Pérez, “Clinical Legal Education and the U.C. Davis Immigration Law Clinic: Putting Theory into Practice and Practice into Theory,” SMU Law Review 51(1998): 1423.

[21] U.S. Citizenship and Immigration Services, Consideration of Deferred Action for Childhood Arrivals (DACA), available at

[22] Arizona v. United States, 567 U.S. 387 (2012).

October 4, 2017

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

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

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

As discussed in my preview of the argument, two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because "to permit[] indefinite detention of an alien would cause a serious constitutional problem." Just two years later, the court in Demore v.Kim invoked the "plenary power" doctrine - something exceptional to immigration law and inconsistent with modern constitutional law - to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 3, 2017

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

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 2, 2017

Travel Ban 3.0: Legalese Cannot Mask a Harsh and Misguided Policy

By Raquel Aldana, Associate Vice Chancellor for Academic Diversity and Professor of Law, UC Davis

[Cross-posted from UC Davis Equity and Inclusion Blog]

On Sunday September 24, 2017, while President Trump artfully distracted the nation by feuding with NFL football players over their First Amendment right to protest racial injustice in the United States, the White House released a Presidential Proclamation Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorist or Other Public-Safety Threats. This new travel ban ("travel ban 3.0") replaces the previously revised travel ban issued March 6 (Executive Order 1380; Protecting the Nation from Foreign Terrorist Entry into the United States), which was due to expire that same night. Travel ban 3.0 has not received as much media attention or public consternation as the original travel ban. However, its harms, which are now indefinite, remain largely unchanged for five of the six predominantly Muslim nations included in the original travel ban (Iran, Libya, Syria, Somalia, and Yemen) while three new nations (Chad, North Korea, and Venezuela) are added to the list.

On its surface, travel ban 3.0 appears to draw careful distinctions in the degrees of travel restrictions imposed on each of the eight nations based on alleged differences in the security risks presented by each. However, with the exception of Venezuela, the most important fact is that travel ban 3.0 indefinitely bars nationals from all of the seven remaining nations from permanent immigration into the United States. No careful "tailoring" as the government claims, can hide this harsh reality. Moreover, six of the targeted nations (Iran, Chad, Libya, Syria, Somalia, and Yemen) are predominantly Muslim. Not unlike the previous two travel bans, travel ban 3.0 hurts predominantly Muslim U.S. families, Muslim refugees, and the entire U.S. economy with highly questionable national security gains.

Permanent immigration into the United States occurs largely for three primary reasons: to promote family unification between foreigners and U.S. citizens or lawful permanent residents, to recruit workers that Congress deems contribute to the U.S. economy, and to provide protection from persecution to refugees and asylum seekers. In 2015, the last year for which the government has provided official data on permanent immigration into the United States, over 20,000 permanent immigrants from these seven nations (the largest numbers from Iran, Syria, and Yemen) arrived in the United States to unify with spouses, children, parents or siblings, to begin gainful employment, often after completing programs of study in the United States, or to escape horrific repression.[1] Moreover, as of 2012, nearly 800,000 persons living in the United States come from countries affected by the ban, representing 2% of all foreign-born immigrants in the country.[2] With travel ban 3.0, potentially hundreds of thousands of U.S. families, some who have waited in backlogged immigration lines for years, confront the possibility of an indefinite separation from their loved ones. Moreover, in violation of our moral obligation and international and domestic legal commitments, under travel ban 3.0, the United States turns its back indefinitely on tens of thousands more refugees.

Travel ban 3.0 did ease some of the previously imposed travel bans in puzzling ways. Only two of the eight nations, North Korea and Syria, face an indefinite bar for both permanent and temporary immigration to the United States. Venezuela is a unique case because the ban on travel applies only to certain government officials. Somalia is also a unique case because temporary immigration is not suspended but rather subjected to additional scrutiny. For the remaining nations, the odd tailoring of restrictions or exceptions to the restrictions will largely mean that some temporary migration will be allowed to come in from each of these countries except for temporary visitors on business or as tourists. For Iran, the ban on temporary migration is even broader exempting only student categories. This begs the obvious question as to why the Trump administration considers it possible to contain the purported national security risks of travel for temporary migrants, who usually come to the United States in much greater numbers than permanent immigrants, while imposing more extreme measures to permanent immigration.

Universities across the country may view as positive that travel ban 3.0 lifts the student visa restrictions on most of the countries affected in the prior travel ban, including Iran. Students from North Korea and Syria, however, are indefinitely banned as students, while Somali students could still face undue restrictions. More importantly, however, travel ban 3.0 leaves intact the barriers that would significantly deter many foreign students, not only those who come from the nations directly affected, from choosing to study in the United States. Already, students from Chad, Libya, and Yemen are indefinitely banned from seeking permanent legal employment in the United States once they finish their studies while students from Iran are indefinitely banned from both temporary and permanent lawful employment in the United States. This significantly reduces the economic incentives for these students to choose their studies in the United States and it robs us of the opportunity to reap the benefits of a U.S. educated workforce. More importantly, the ban signals to these foreign students that they are considered security risks to our nation and are not wanted. Why should foreign students spend tens of thousands of dollars to study in a nation hostile to them and their contributions? Who among them is going to be targeted next?

More than a million international students currently study on U.S. college campuses, contributing nearly $36 billion to the U.S. economy.[3] From the targeted countries, Iran and Venezuela feature among the top 25 sending nations, and together comprise more than 20,000 students nationwide.[4] At UC Davis, our student population from the affected nations is fewer than 100, with the largest share comprised of students from Iran. These students are feeling targeted, isolated, and scapegoated. Each one of them, however, is a valuable member of our community. Their presence on this campus makes us a better university and enhances our understanding of shared or even different values, culture, religion, and ideas. Our shared spaces allow us to grow in respect for one another. U.C. Davis students and scholars affected by travel ban 3.0 can find support at UC Davis Services for International Students and Scholars. UC Davis remains committed to supporting and welcoming students and scholars regardless of citizenship or place of birth.

Travel ban 3.0 may have both delayed and muddled the legal challenges to the prior travel bans but it should not alter our moral indignation against the policies. The legal challenges to the prior travel bans relied on President Trump's virulent anti-Muslim rhetoric to make a compelling case of the religious animus motivating the ban. The inclusion of Venezuela and North Korea in travel ban 3.0 could make this claim harder, particularly when immigration law's exceptionalism already grants the President wide discretion to violate fundamental rights even of U.S. citizens directly affected by the ban (e.g., those who can assert a "bona fide" relationship to nationals from the banned countries). Law, however, cannot always provide the right answers. We must also be guided by our values, our humanity, and our common sense. Travel ban 3.0 remains essentially an anti-Muslim prohibition. It must also be understood in the context of a broader anti-immigrant agenda, which also targets other communities of color. This includes the recent immigration raids, DACA's rescission, cuts in refugee admissions, and legislative proposals like the RAISE ACT which proposes major cuts to family immigration, which predominantly originates from Mexico, China, India and the Philippines. The national security justification for the ban has great appeal, but it is misguided. Since September 11, 2001, a vast majority of the perpetrators of terrorist attacks came from countries not listed in the ban, and many were born in the United States.[5] Security experts particularly puzzle over Chad's inclusion since Chad has been an ally in the fight against terrorism.[6] Careful consideration must be given to how and whether immigration controls are necessary to improve U.S. security. However, indiscriminate immigration bans against entire nations are unlikely to make our nation safer. They will certainly, however, make us a less diverse and inclusive nation.


[1] Department of Homeland Security, 2015 Yearbook of Immigration Statistics, Table 10: Persons Obtaining Lawful Permanent Resident Status By Broad Class of Admission and Region and Country of Birth.

[2] Mona Chalabi, "How many US immigrants come from Trump's seven banned countries?" The Guardian (28 January 2017); Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, "Immigrants from Banned Nations: Educated, Mostly Citizens and Found in Every State," New York Times (30 January 2017).

[3] Karin Fischer, "International Students Dodge Trump's Partly Reinstated Travel Ban, but Concerns Persist," Chronicle of Higher Education (26 June 2017).

[4] Id.

[5] Ford Fessenden, Jasmine C. Lee, Sergio Pecanha and Anjali Singhvi, "Immigrants From Banned Nations: Educated, Mostly Citizens and Found in Every State," New York Times (30 January 2017).

[6] Helene Cooper, Michael D. Shear and Dionne Searcey, "Chad's Inclusion in Travel Ban Could Jeopardize American Interests, Officials Say," New York Times (26 September 2017).

September 29, 2017

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

By Kevin R. Johnson

[Cross-posted from SCOTUSblog.]

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

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

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

A noncitizen, including a lawful permanent resident, who is convicted of an "aggravated felony" is subject to mandatory removal. The Immigration and Nationality Act defines "aggravated felonies" expansively, including some misdemeanor as well as felony convictions. Part of that definition includes a "residual clause," 18 U.S.C. §16(b), which defines a "crime of violence" to encompass "any ... offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in course of committing the offense."

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

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

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

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

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

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

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