September 15, 2023

The Immorality of DACA’s “Illegality”

[Cross-post from Aoki Center Blog]

By Raquel E. Aldana

Two thousand and one marked the introduction of the first DREAMER legislation in the U.S. Congress. Over the next two decades, at least a dozen versions of bills would be introduced to attempt to regularize the status of DREAMERS, a term that describes around two million persons in irregular immigration status brought to the United States as children. Despite consistent and broad support for DREAMER legislation, the closest Congress came to passing the legislation was in 2010 when it passed the House but fell just five votes short of the 60 needed to proceed in the Senate.

Few other stories of failed legislation in recent U.S. history exemplify the perils of congressional dysfunction like the fate of Dreamers in the U.S. Congress. One significant peril has been the human toll on millions of deserving young people who are American except by birth. Another is the strain on U.S. democracy when its elected leaders refuse to take moral action to rectify wrongs even in the face of strong public support for them to do so. [1]

In 2012, the Obama Administration’s imperfect response to this congressional moral failure came in the form of a Department of Homeland Security [DHS] Memorandum that created DACA (Deferred Action for Early Childhood Arrivals). DACA provided respite from deportation to certain DREAMERS who qualified under the program’s guidelines, an estimated 1.7 million. Ultimately, fewer applied but the numbers reached as high as 814,000 by 2018, and 578,680were still active by March 2023.

DHS relied on its prosecutorial discretion powers to issue DACA. It also employed rational pragmatism and humanity to grant worth authorization to DACA recipients. Without work authorization, DACA recipients would be expected to live in the shadows of U.S. society, not only in despair but also exploitable. It is worth noting that at its discretion, and for humanitarian reasons, DHS grants work authorization to foreign nationals awaiting adjudication of their immigration status or who are under temporary forms of protections in recognition that protection from deportation, even when temporary, without an ability to work, is no protection at all.

Now, Judge Andrew Hanen seizes on DACA’s longevity and its accompanying work authorization, to declare it illegal. To be exact, Judge Hanen, with the Fifth Circuit’s blessing, first found the 2012 DHS Memorandum creating DACA illegal at its tenth anniversary. The same year, in 2021, the Biden administration attempted to “preserve and fortify” DACA’s legality by enacting a formal rule. But to Judge Hanen, the rule may have fixed the irregularities of how DACA came to be (adopted without notice and comment) but did not address what he, and the Fifth Circuit, consider DACA’s substantive flaws. Then on September 13, 2013, Judge Hanen declared  the new Biden rule similarly illegal, leaving the ultimate fate of DACA in the hands of the Fifth Circuit and likely the U.S. Supreme Court. What, exactly, is said to be illegal about DACA? According to Judge Hanen and the Fifth Circuit, DACA violates the Administrative Procedures Act [APA] and the Take Care clause of the U.S. Constitution because its issuance exceeds DHS’s statutory authority under the Immigration and Nationality Act. The Fifth Circuit must now decide whether it agrees with Judge Hanen that the new DACA rule, just like the 2012 Memorandum, exceeds DHS’s statutory authority. Ultimately, the issue is likely to end up before the U.S. Supreme Court, which will be an arbiter of yet another issue with potentially dire consequences for the lives of millions in this country.

One saving grace of this unfortunate litigation saga is that Judge Hanen and the Fifth Circuit, while enjoining new DACA applications after finding the program unlawful, have spared current DACA recipients from losing their vested status, at least until the issue is adjudicated definitively on the merits. This is significant to the well-being and livelihood of over half a million current DACA holders who have relied on this status to build careers, gain professions, secure better pay, have families, acquire properties, and open businesses. Ideally, this recognition, at least for this group, could also have legal significance. It mattered to the U.S. Supreme Court in 2020, at least, when it halted the Trump administration’s attempt to rescind DACA without a fair process. It should also matter when the Fifth Circuit or ultimately the Court interprets the Immigration and Nationality Act’s permissiveness to allow DHS’s issuance of DACA. Here, a Chevron deference that is informed by the principle of lenity should govern statutory interpretation. It is also not arbitrary and capricious, the APA’s substantive standard for agency action, for DHS to confer employment authorization for humanitarian and pragmatic reasons to those over whom it has exercised the discretion not to deport.

Of course, Congress can end the litigation by rendering it moot if and when it passes DREAMER legislation, or broader comprehensive immigration reform. Both the House and the Senate have current bipartisan bills protective of DACA recipients Congress consider for adoption quickly. As well, broader pieces of comprehensive immigration reform proposals have been on the table and ripe for consideration.  Meanwhile, it is hopeful that at some point as many as 22 states joined to support DACA in the litigation before the Fifth Circuit, in contrast to the 9 states that are seeking to end it. States as well have an important role to play in supporting DACA and all undocumented residents, but especially the hundreds of thousands of unDACAmented youth impacted by this litigation. This Higher ED Immigration Portal highlights examples of several state innovation to support DACA students. Institutions of higher learning can be creative in how to support access and affordability to universities and colleges. Civil society has a crucial role to play to push for reform and engage with the issue. The time is now. Sí se puede!


July 7, 2023

Immigration in the Supreme Court, 2022 Term

[Cross-Post from ImmigrationProf Blog]

By Kevin R. Johnson

No Supreme Court Term could be expected to attract the national attention given to the 2021 Term, which saw the unprecedented leak of the opinion in the Dobbs case overruling Roe v. Wade and changing the constitutional trajectory of reproductive freedom in the United States.  Still, some decisions in the 2022 Term brought great change to the law.  Flirting with the outcome for years, the Court finally put in the minds of many an end to race-conscious affirmative action in university admissions.  At the same time, there were some pleasant surprises for liberals, including notable voting rightselection law, and Indian law decisions.  There also was time for a light moment or two.  Lovers of dogs and whiskey had to take glee in Jack Daniel's beat back in a trademark case of the manufacturer of a "Bad Spaniels" dog toy.

Each year, I compile the Supreme Court's immigration decisions from the most recent Term.  My recap of immigration decisions from the 2021 Term is here.   

The 2022 Term saw the Court issue four immigration decisions, the same number as last Term.  None were immigration law blockbusters, although the Court's disposal of the challenges of states to the Biden immigration enforcement priorities case (United States v. Texas) and Title 42 border closure case (Arizona v. Mayorkas) were important to the Biden administration's overall immigration program. 

The four merits decisions -- three of which came down in the last week of June -- dealt with executive power over immigration enforcement priorities, exhaustion of remedies for judicial review, criminal removals, and a (rare) First Amendment decision involving an immigration attorney  The U.S. government won in three cases.  Noncitizens won in two.  Immigration attorneys lost in one.  States lost in one case.

Merits Decisions

1.  Executive Power over Immigration Enforcement Priorities:   United States v. Texas.

U.S. government wins.  Noncitizens win.  States Lose.

In an opinion by Justice Brett Kavanaugh, the Court in United States v. Texas held that Texas and Louisiana lacked Article III standing to challenge the Biden administration’s immigration enforcement priorities, namely its more targeted approach focused on criminal noncitizens and other dangers to public safety than the Trump administration's "zero tolerance" approach to all undocumented immigrants.  Justice Samuel Alito was the lone dissenter.

The Court specifically held that the states could not challenge the Biden administration's Department of Homeland Security’s Guidelines for the Enforcement of Civil Immigration Law.

Writing for the majority, Justice Kavanaugh emphasized that “[t]he States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Amy Howe for SCOTUSBlog summarized the decision as follows:

"In a major victory for the Biden administration, the Supreme Court . . . ruled that Texas and Louisiana do not have a legal right, known as standing, to challenge a Biden administration policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation. The justices therefore did not weigh in on the legality of the policy itself, instead reversing a ruling by a federal district court in Texas that struck down the policy. The vote was 8-1. Justice Brett Kavanaugh wrote for a majority. . . . Justice Neil Gorsuch wrote an opinion in which he agreed that the states lacked standing, but for a different reason; his opinion was joined by Justices Clarence Thomas and Amy Coney Barrett (who wrote her own concurring opinion, joined by Gorsuch).

Justice Samuel Alito was the lone dissenter. He complained that the court’s decision left states `already laboring under the effects of massive illegal immigration even more helpless.'

The policy at the center of . . . United States v. Texas, was outlined in a . . . memorandum by Secretary of Homeland Security Alejandro Mayorkas. The memorandum explains that because the Department of Homeland Security does not have the resources to apprehend and deport all of the more than 11 million noncitizens who could be subject to deportation, immigration officials should prioritize the apprehension and deportation of three specific groups of people: suspected terrorists; noncitizens who have committed crimes; and those caught recently at the border." (bold added).

The Court went to some length to make it clear that its holding does not affect the ongoing challenges by several states to the lawfulness of the Deferred Action for Childhood Arrivals policy.   As the National Immigration Project stated in a "practice advisory" to United States v. Texas

"[t]he decision may have broader implications on states’ standing to challenge federal immigration policies, but the Court repeatedly noted that its decision is limited to the context of enforcement discretion over arrests and prosecutions. The Court explained that it does not reach questions regarding standing to challenge provision of legal benefits (such as DACA) or detention of noncitizens who have already been arrested." (bold added).

Secretary of Homeland Security Alejandro N. Mayorkas released the following statement on the Court’s ruling in United States v. Texas:  “We applaud the Supreme Court’s ruling. DHS looks forward to reinstituting these Guidelines, which had been effectively applied . . . to focus limited resources and enforcement actions on those who pose a threat to our national security, public safety, and border security. The Guidelines enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress."

On the same day that it decided United States v. Texas, the Court decided United States v. Hansen.  The two decisions were the final immigration decisions of the Term.

2.  Exhaustion of Remedies and Judicial Review:  Santos-Zacaria v. Garland

Noncitizen wins.

Justice Jackson delivered the unanimous opinion of the Courtwhich Chief Justice Roberts and Justices Sotomayor, Gorsuch, Kavanaugh, and Barrett joined.  Justice Alito concurred in the judgment, which Justice Thomas joined. 

In a straight-forward statutory interpretation case, the Court held that 8 U.S.C. 1252(d)(1), which requires noncitizens to “exhaus[t] all administrative remedies . . . as of right” before challenging a Board of Immigration Appeals final order of removal in federal court, does not require noncitizens to file motions for reconsideration before seeking review in the court of appeals.  The ruling vacated in part and remanded the Fifth Circuit decision rejecting an appeal by a Guatemalan transgender woman.  

3.  First Amendment Challenge to a Criminal Immigration Statute:  United States. v. Hansen

U.S. government wins.   Immigration attorneys lose.

The case presented the question whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain violates the First Amendment.  The Supreme Court in United States v. Hansen rejected the First Amendment challenge to the law. 

The U.S. government prosecuted Helaman Hansen for promising noncitizens a path to citizenship through "adult adoption," a form of relief that does not exist under the law.  8 U.S.C. §1324(a)(1)(A)(iv) makes it unlawful to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”  Hansen challenged the law as overbroad in violation of the First Amendment. The Ninth Circuit agreed.  The Supreme Court in 2020 had been presented the same First Amendment issue (United States v. Sineneng-Smith) but had disposed of the case on procedural grounds.  

In a 7-2 decision authored by Justice Amy Coney Barrett, the Court reversed, finding that the law does not prohibit a substantial amount of protected speech and does not violate the First Amendment.  Justice Ketanji Brown Jackson dissented, in an opinion joined by Justice Sonia Sotomayor. The dissent states:

"At bottom, this case is about how to interpret a statute that prohibits `encourag[ing] or induc[ing]' a noncitizen `to come to, enter, or reside in the United States' unlawfully. . . . The Court reads that broad language as a narrow prohibition on the intentional solicitation or facilitation of a specific act of unlawful immigration—and it thereby avoids having to invalidate this statute under our well-established First Amendment overbreadth doctrine. But the majority departs from ordinary principles of statutory interpretation to reach that result. Specifically, it rewrites the provision’s text to include elements that Congress once adopted but later removed as part of its incremental expansion of this particular criminal law over the last century."

4.  Criminal Removal for Obstruction of Justice:  Pugin v. Garland (consolidated with Garland v. Cordero-Garcia)

U.S. government wins.

The issue is these cases was whether, to qualify as “an offense relating to obstruction of justice,” 8 U.S.C. § 1101(a)(43)(S), an offense must have a nexus to a pending or ongoing investigation or judicial proceeding?  The issue is of practical immigration significance because an “offense relating to the obstruction of justice” is among the criminal convictions that are classified by the immigration statute as an "aggravated felony" subjecting noncitizens to mandatory removal from the United States. 

Justice Kavanaugh delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Barrett, and Jackson joined.  Justice Jackson filed a concurring opinion. Justice Sotomayor filed a dissenting opinion, which Justice Gorsuch joined, along with Justice Kagan (except for Part III).  The majority held that a criminal offense may "relat[e] to obstruction of justice” under the statute even if the offense does not require that an investigation or proceeding be pending.  The Court observed that obstruction of justice is often “most effective” when it prevents “an investigation or proceeding from commencing in the first place.” 

The bottom line of the SCOTUSBlog analysis of the decision by Karen Pita Loor and Cassidy Heverling is that "the majority’s decision in Pugin opens the door for the government to argue that an ever-expanding array of crimes warrant deportation."

Case Dismissed from Merits Docket

The immigration case of the 2022 Term that perhaps received the most attention involved the Title 42 order, which President Trump originally issued to close the border to migrants ostensibly to reduce the spread of COVID.  Arizona v. Mayorkas involved challenges to the Title 42 order.  After the Biden administration abandoned the appeal, the Court agreed to review whether states may intervene to challenge the district court’s entry of summary judgment order in the case  In December 2022, the Court allowed the Title 42 order to remain in place pending the appeal.   In May 2023, the Biden administration lifted the Title 42 order.   Despite considerable (and exaggerated) concern with the mass movement of migrants, the end of Title 42 was uneventful.  Not long after, the Supreme Court dismissed the appeal and sent the case back to the lower court with instructions to dismiss the states’ request as moot.


June 9, 2023

Migrant Flights Reveal How Politicians Would Rather Toy with People Than Talk Solutions

[Cross-post from CalMatters]

By Kevin R. Johnson

With 2024 campaigns heating up, immigration politics are as well, and we can expect the election cycle to bring much fire and brimstone. Sadly, as has long been the case in U.S. history, immigrants will likely suffer as a result of the political maneuverings.   

Seeking to establish his tough immigration enforcement credentials as the Republican primaries near, Florida Gov. Ron DeSantis has made headlines by taking the extraordinary step of flying migrants to Democratic states that are more open to immigrants. Last year, he arranged for a group to be flown to tourist destination Martha’s Vineyard in Massachusetts, a Democratic bastion. And over the last week, DeSantis sent several flights to Sacramento making it the latest blue-state dumping ground. 

Sadly, DeSantis’ publicity stunts adversely affect real people and real lives. To his credit, Sacramento Mayor Darrell Steinberg and others embraced the migrants with open arms,  providing them with food, shelter and lawyers to help them address their immigration status.  

Although the migrant relocation program may be new, it is just the latest chapter in the cynical practice of playing politics with immigrant lives.  

Immigrant bashing has a long history in the United States. In a period of Chinese immigration in the 1800s, California strongly advocated for national Chinese exclusion laws, which effectively led to a ban on Chinese immigration to the United States.

More recently, former President Donald Trump famously kicked off his successful 2016 presidential campaign by attacking Mexican immigrants as “criminals” and “rapists.” As president, he continued similar rants toward Haitians, Salvadorans and others, crudely saying that the United States should not be accepting migrants from “shithole countries.” Trump appealed to his anti-immigrant base, and fomented even greater hate.  

For four years, the Trump administration pursued tough immigration policies, narrowed asylum relief, talked of a “beautiful” wall along the southern border and ending birthright citizenship. He also closed the border under Title 42, ostensibly to prevent the spread of COVID, and the “remain in Mexico” policy forcing asylum seekers to remain in Mexico while their claims were being decided in the United States. 

President Trump’s tough talk translated into unforgiving policies, felt by immigrants, their families and communities. Two of the most memorable policies were the heartless separation of children from their parents, and the ban on the admission of migrants from Muslim nations.  

Immigrant communities in the U.S. responded as expected. Terrified to leave their homes, some parents feared taking their children to church, doctors and school. Activists fought back but the damage was done. 

Unfortunately, DeSantis follows the same anti-immigrant playbook as Trump. In fact, he seems to be trying to outdo Trump on immigration enforcement. 

The governor demonizes immigrants at every turn and supports policy measures that punish them. At his behest, the Florida legislature passed a tough state immigration law, much of which appears to intrude on the federal power to regulate immigration and thus likely violates the U.S. Constitution. It requires employers to use a federal database to verify the employment eligibility of employees and invalidates out-of-state drivers licenses for immigrants.  

Put simply, DeSantis seeks to make headlines by playing with immigrant lives. He is appealing to the nation’s baser instincts and, in the end, does little to address the nation’s challenging immigration policy issues – which include reforming the system of legal immigration, addressing the legal status of undocumented immigrants already in the U.S. and determining how best to enforce immigration laws stateside and at the border. 

In the end, the migrants dumped in Sacramento are part of a larger ploy to score political points and win elections, not address the immigration issues facing the nation.

May 31, 2023

The Ninth Circuit, Racism, and Immigration Law

[Cross-post from ImmigrationProf Blog]

By Kevin R. Johnson

Last week, in a widely-reported decision, the U.S. Court of Appeals for the Ninth Circuit, once known for its liberalism, reversed a lower court finding that Congress passed a federal immigration law with an intent to discriminate against persons from Mexico.  The law in question bars the unlawful re-entry into the United States of previously removed noncitizens.  The court rejected the lower court ruling even though district court fact findings are rarely disturbed, the evidence included a racial epithet (“wetbacks”) in a Department of Justice letter that was part of the legislative history, and the overwhelming majority of the persons convicted under the statute year in and year out have been Latina/o.  The ruling in United States v. Carrillo-Lopez shows both how dramatically the Ninth Circuit has changed over time and, at the same time, how difficult it is to dislodge systemic racism from the U.S. immigration laws.

Because of its geographic proximity to the U.S./Mexico border, the Ninth Circuit hears more immigration appeals than any other circuit.  Conservatives for years criticized the decisions of the court as too liberal.  Although the Supreme Court reversed some Ninth Circuit’s immigration decisions, it in INS v. Cardoza-Fonseca :: 480 U.S. 421 (1987) affirmed the opinion of Judge Stephen Reinhardt, known as the court’s “liberal lion,” which outlined the evidentiary burden on noncitizens fleeing feared persecution and seeking asylum in the United States.

With conservatives today a majority of the Ninth Circuit’s judges, the days of the court being reasonably labeled as ultra-liberal are long gone.  The opinion rejecting the Equal Protection challenge to the illegal re-entry statute in United States v. Carillo-Lopez was written by Judge Sandra Ikuta, a George W. Bush appointee.  The case turned on the requirement that, to prevail on an Equal Protection challenge to a law, the plaintiff must prove that the government intended to discriminate.  It, of course, is difficult to prove what is in one’s mind and thus is not surprising that Judge Ikuta found that race had not been adequately established as a motivating factor for the illegal re-entry law. 

In so holding, the court rejected the claim that the reference by a Department of Justice official to “wetbacks,” a racial epithet directed at Mexicans, in discussing the law failed to support a finding of a discriminatory intent.  Nor were the stark impacts of Latina/os suffering the overwhelming majority of the criminal convictions under the law sufficient to prove such an intent.  One is left to wonder what, in the court’s eyes, would be sufficient to prove a discriminatory intent.  The court’s restrictive notion of what proves a discriminatory intent likely will limit successful discrimination challenges to, among other things, government policing practices, housing laws, and employment decisions.

As the nation grapples with systemic racism in criminal law enforcement, it has begun to confront such racism in the immigration laws.  In the first comprehensive federal immigration law in the 1800s, Congress passed the Chinese Exclusion Act in an attempt to end Chinese immigration.  The discriminatory tradition lives on in the modern immigration laws and their enforcement.  Bringing race to the forefront of the immigration debate, President Trump crudely denigrated Mexican, Salvadoran, Haitian, and other immigrants and proclaimed the need for more immigrants from Norway.  Exemplifying President Trump’s approach to immigration, the Muslim ban barred the admission of migrants from a group of predominately Muslim nations.

In rejecting the claim that the law targeting Mexicans was motivated by racism, Judge Ikuta in United States v. Carrillo-Lopez emphasized the narrow scope of judicial review of immigration laws and policies, citing, among many cases, the Supreme Court decision to uphold the Muslim ban in Trump v. Hawaii (2018).  The Ninth Circuit’s ruling will make it difficult to challenge the provisions of the immigration laws that are facially neutral (i.e., do not mention race) but have disparate and dramatic impacts on immigrants of color from the developing world.

In the end, the Ninth Circuit’s ruling in United States v. Carrillo-Lopez shows how much things have changed and how much they remain the same.  The Ninth Circuit has become more conservative.  And systemic racism remains at the core of U.S. immigration law and its enforcement.  Moreover, the Ninth Circuit in United States v. Carrillo-Lopez made it more difficult for plaintiffs to successfully challenge many discriminatory laws and policies.

May 17, 2023

The End of the Title 42 Order – a Return To Border Migration Normalcy and Due Process of Law

[Cross-post from Daily Journal]

By Kevin R. Johnson


Last week, the Biden administration lifted the Title 42 order put in place by President Trump, which for several years had in effect closed the U.S./Mexico border to migrants. Rather than a feared stampede at the border, the end of Title 42 simply returned the border to the system that has stumbled along for decades. The task before the nation now is how to reform that system so that it responds effectively and efficiently to manage the 21st century of global migration.

In 2020, President Trump issued an order under Title 42, a public health law, which permitted the immediate removal from the country of asylum seekers fleeing violence and persecution. Critics claimed that the President relied on the public health law to rationalize mass expulsions; more generally, that said, he wanted to limit the number of immigrants in the United States, which was consistent with his many efforts to restrict immigration.

As few could miss, the Biden administration’s plan to end the Title 42 border closure made the news. Story after story raised the specter of an uncontrollable influx of migrants storming the U.S./Mexico border.

Given that the Trump Title 42 order had been in place for several years, one might in fact expect that the lifting of the order might be followed, at least temporarily, by an increase in migration. Pent-up demand for migration might contribute to more migration in the short run. President Biden himself cautioned that it might take time for migration flows to stabilize.

Responding to such fears, the Biden administration took steps to deter migrants from unlawfully entering the United States. Indeed, troops were sent to the border. Restrictions on asylum applications also were put into place. Clear legal pathways for Haitians, Venezuelans, Cubans, and Nicaraguans, fleeing nations plagued by violence and turmoil, were created to discourage all unlawful entry.

As it turns out, the end of Title 42 did not result in a flood of migrants. In fact, little has changed along the U.S./Mexico border. Migrants—families among them—still come seeking a better life or sanctuary from violence. However, traffic so far has been manageable.

The truth of the matter is that, as was the case for many years before the Title 42 order, there is a system in place to process the asylum and other claims of migrants. Although far from perfect, the system has operated and enforces the border consistent with the rule of law.

The border closure through the Title 42 order was an easy—and arguably unlawful—answer to proponents of halting migration. But there no longer is a public health emergency that justifies the extreme measure of closing the border and denying any and all rights to migrants. Title 42 simply no longer is a viable policy option.

Moreover, there is no need for radical border closure. Ebbs and flows of migration have occurred regularly in U.S. history. Political turmoil and violence in Central America and Haiti in the 1980s and 1990s led to many U.S. government responses, such as the interdiction of boats of Haitians by Coast Guard cutters and the immediate return of migrants to Haiti.

Policies were also put into place to detain large numbers of Haitians and Central Americans seeking asylum. Congress added to the U.S. government’s tool box in 1996, such as the creation of expedited removal of migrants apprehended at the border without a credible asylum claim, and the increased authorization of detention of migrants. Although some of these measures may be criticized (such as deaths in detention, including some reported last week), they are preferable—and legal—alternatives to an unsustainable and unlawful system of closed borders.

The exaggerated fears of the end of Title 42 are now behind us. The hard work ahead is improving our under-resourced migration system. The U.S. government has returned to a system that permits migrants to apply for asylum and have their claims decided by asylum officers and immigration courts. The difficult task is how to refine that system so it operates efficiently and has the confidence of the American people.


January 27, 2023

MLK and Border Justice

By Raquel E. Aldana, Professor of Law and Co-Director of the Aoki Center on Critical Race and Nation Studies

"We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly." – Dr. Martin Luther King

I write these reflections on January 16, 2023, the day we commemorate Martin Luther King’s (MLK) legacy and imperative for racial justice. I am fortunate to teach at the UC Davis School of Law, named after MLK. King Hall, the name we use to call our school, draws exceptional students, including many who are committed to MLK’s racial justice project. In our Asylum and Refugee Law seminar this semester, we spent last week setting the stage to understand the human tragedy occurring at our U.S.-Mexico border and sadly the numerous parallels of similar stories across the globe. In anticipation of MLK day, I shared with my students a page the United Nations High Commissioner for Refugees (UNHCR) created back in 2021 in which a handful of transcendent refugees – meaning they themselves received harbor and propelled their lives to elevate others—reflected on how MLK inspires their lives. I was struck by the MLK quotes they chose. In addition to quote above, two others caught my attention: “Injustice anywhere is a threat to justice everywhere” and “America is essentially a dream, a dream yet unfulfilled.”

Two themes stand out for me in these quotes about today’s MLK-inspired racial justice imperative. The first is the universality and mutuality of the racial justice imperative. The second, more implied in its focus on the unfulfilled “American” dream, is the recognition that human rights begin at home. At first glance, these two themes may appear to conflict with one another. It could, for instance, mean that the universality and mutuality of the racial justice imperative that MLK espoused was bounded by borders, if only due to the pragmatic recognition of the enormity in the racial justice gaps present in MLK’s “America.” I take issue, however, with this bounded reading of MLK’s vision. Both then and now, “America” – an ironic use of the word that should name the continent and not a single nation within it – was a nation whose struggles for racial justice could not be disentangled from its global reality.

In 2016, the Huffpost wrote a piece titled Martin Luther King and Immigrant’s Rights. The piece discusses the paradox in how both those who promote restrictive borders and those who seek to open or erase them, claim MLK’s legacy as being on their side. The place of border justice – i.e., the treatment of freedom of movement as a fundamental right – as a racial justice project has not always been easy to name. This is, in part, because borders, not unlike prisons, have been used effectively to divide humanity between those who deserve justice and those who, due to their criminality or illegality, do not. The Huffpost piece, for example, recounts MLK’s efforts toward inclusivity when he wrote in a 1966 telegram to Cesar Chavez, the leader of the United Farm Workers (UFW), that our “separate struggles are really one.” Some would suggest that the Cesar Chavez and labor union’s own ambivalence over immigration, solidified a bounded inclusivity that prioritized the well-being of U.S. domestic workers in their search for racial justice. Except this explanation is too simplistic. For one, at the time, the UFW was comprised of a large force of undocumented workers. The problem, thus, was not the undocumented workers themselves but rather the system of laws, policies, and practices, that exploited the vulnerability of workers to create conflicts that directly compromised what should have been a joint project toward greater labor and workers right in this country. Overtime, labor unions would more fully understand the structural racism that permeated labor exploitation and to view borders as a tool for reinforcing such a system.

Today, MLK’s unfulfilled American dream for racial justice continue to weigh heavily on our shoulders. We are confronting an erasure of hard-fought civil rights gains in this country, sight unseen. Affirmative action and voting rights are threatened while racial disparities in income and other outcomes remain the most persistent features of U.S. society. It is understandable why the struggle for racial justice can turn us inward; except, in doing so, we can miss both nuance in analyzing the problem and its solutions or opportunities for global solidarity and action.

Take, for example, the dominant framing of asylum seekers form Mexico or Northern Triangle countries (Guatemala, El Salvador, on Honduras). Many, though certainly not all, are fleeing terrible violence waged against them by gangs or narco-traffickers. When I traveled with a group of King Hall students to Tijuana in March of 2022, I heard horrifying stories that haunt me still today. Yet I knew that even if the border had not been shut due to Title 42, few to none would qualify for asylum, their plight dismissed as privatized violence over which we neither had a moral or legal responsibility. But all we must do is dig a little bit deeper to understand this framing is just wrong. For over five decades, we have waged a similarly tragic, racialized, and failed war on drugs in Latin America that has wreaked havoc to many nation’s institutions and severely damaged their capacity to contain corruption and violence. As well, the transnational roots of gangs began with U.S. policies of mass deportations of gang members to the region without regard to the havoc – both violence and threats to democracy-- it would cause to those countries. Just yesterday, for example, hundreds of Salvadorans took to the streets to commemorate thirty-one years to peace that ended a war that left over 75,000 dead. But they all also protested President Bukele’s authoritarian rule which has, among other worries, led to tens of thousands of arrests and scores of human rights violations against those accused of gang affiliations.   

Despite the above, in recent days, the tenor of the conversation between President Biden and Mexican President López Obrador, with focus on enforcement as a mean to control migration flows, remind me of the dangers of looking only inward when we think of racial justice. President Biden is under extreme domestic pressure to control the border, seemingly at any human cost. Over the years, border policies have contributed to thousands of migrant deaths at the U.S.-Mexico border, with 2022 being the worst year. Domestic calls for tough on immigration control at the border, often a bipartisan project, have deadly consequences. They are also shortsighted. They will not work because they fail to address the root causes of migration, which include externalities from or the exportation of domestic U.S. policies to Latin America whose casualties are the migrants at our Southern border whose suffering we fail to heed.

December 22, 2022

Top Ten Immigration News Stories of 2022

[Cross-post from ImmigrationProf Blog]

By Kevin R. Johnson

2022 has been an exciting year in immigration law and enforcement.  It probably will be most remembered for

(1) the efforts of (and courts' resistance to) the Biden administration to roll back the Trump administration's immigration measures; and

(2) the publicity stunts of the governors of Texas and Florida to show that the Biden administration was not effectively enforcing the immigration laws. 

Here is the ImmigrationProf top 10 news stories for 2022.  By way of comparison, here are the top 10 news stories from 2021.

1.  The Biden Administration Faced Fierce Resistance to Rolling Back Trump Immigration Enforcement Measures.

As a public health measure, President Trump had invoked a public health law, Title 42, to expel migrants seeking to enter the country at the U.S./Mexico border.  The Biden administration sought to lift the Title 42 order.  Some courts and political leaders fiercely resisted the efforts.  The Supreme Court earlier this week stayed an injunction requiring an end of the Title 42 order. 

It was not only conservatives who questioned the lifting of the Title 42 order.  Its termination generated concern among some Democratic Senators.  With the Title 42 order slated to end, some Democrats became nervous.  As Law360 reported, four Democratic senators pressed the U.S. Department of Homeland Security to answer questions about managing the expected increase in migrants crossing the southern border, with a lifting of the Title 42 order.

The intensity of the worries grew after U.S. District Judge Emmet Sullivan invalidated the Title 42 order as "arbitrary and capricious."   Maria Sacchetti and Spencer S. Hsu for the Washington Post reported on the ruling.  The court order and the Biden administration's attempted announcement the the title 42 order would be lifted, sparked controversy. 

Days before the scheduled lifting of the Title 42 order, U.S. Supreme Court Chief Justice John Roberts stayed the court order ordering the end of the Title 42 orderThe bottom line:  the Trump administration's Title 42 expulsion order remains in effect.

DHS Announces the End (Finally) to Remain in Mexico Policy,  A Court Says No Way

Title 42 was not the only area in which the Biden administration's immigration initiatives -- and roll backs on Trump policies -- experienced resistance.  Despite the Supreme Court ruling allowing the Biden administration to dismantle the "Remain in Mexico" policy, which allows the return of asylum-seekers to Mexico while their asylum claims are being decided, the policy remained in place.  The Department of Homeland Security announced that it would phase out the Trump era Migrant Protection Protocols (MPP) program reported Adolfo Flores for BuzzFeed News.  MPP forced thousands of migrants to spend lengthy periods in dangerous conditions in Mexico.  It "has endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border," noted DHS Secretary Alejandro Mayorkas

The legal roller coaster over President Trump's Remain in Mexico policy continues.  A trip to the Supreme Court did not end the controversy.  Just last week, U.S. District Judge Matthew Kacsmaryk, a Trump appointee, suspended the Biden administration's termination of MPP.

There have been many other challenges to the Biden administration's immigration policies.  The Title 42 and Remain in Mexico battles offer an idea of the magnitude of the resistance and the administration's inability to reverse signature Trumpian immigration measures.

2.  State Governors Protest the Alleged Lack of Federal Immigration Enforcement by Transporting Migrants North

Texas Governor Greg Abbott and Florida Governor Ron DeSantis in 2022 repeatedly engaged in publicity stunts that showed utter disregard for the plight and humanity of migrants who have come to the United States. That included the extraordinary step of busing migrants to New York City, Washington D.C., and Chicago.

Governor DeSantis's transportation of a group of migrants to Martha's Vineyard in Massachusetts, a tourist destination of the rich and famous, attracted the most attention.  See Class Action: Migrants Say Florida Governor DeSantis "Stranded" Them on Martha's Vineyard.  A lawsuit followed Governor DeSantis's Massachusetts adventure.  Law360 reported on the suit by asylum-seekers alleging that they were tricked into boarding flights to Martha's Vineyard -- and left them stranded there -- in violation of their constitutional rights.

Other reports on the Martha's Vineyard spectacle:

Immigrants land on Martha's Vineyard;  Florida Governor takes credit

DeSantis Plays Politics with the Lives of Migrants

In line with the Governor DeSantis playbook, Texas Governor Greg Abbott made federal immigration enforcement a re-election campaign issue.  See Texas Governor Now Busing Migrants to Chicago as well as DC and NYC.

He sent migrants by bus from Texas to Washington, D.C. , New York City, and Chicago.  See Texas Governor Busing of Migrants to NYC and DC Keeps Him in the News.   NPR reported that "New York City Mayor Eric Adams . . . criticiz[ed] Texas Gov. Greg Abbott for sending busloads of migrants to the city, saying that Abbott 'used innocent people as political pawns to manufacture a crisis.'" (bold added).

Governor Abbott took a number of other immigration measures (and here).  They generated controversy but kept Abbott in the news.  

3.  The Supreme Court and Immigration

"Immigration in the Supreme Court, 2021 Term" reviews the Court's immigration decisions of the 2021 Term.  See last year's recap of the 2020 Term. 

The 2021 Term did not include any blockbuster immigration decisions.  Biden v. Texas probably received the most attention.  The decision cleared the way for the Biden administration to dismantle a signature Trump administration immigration enforcement policy, the "Remain in Mexico" policy, which requires asylum seekers to be returned to Mexico while their claims are being decided.  Breaking News: Supreme Court Decides Remain in Mexico Case.    

The Court decided five immigration cases in the 2021 Term, an average number for the Court in recent years.  What is different this Term is that the pro-immigrant position failed in four of the five immigration cases, showing the tilt of the Supreme Court's conservative super-majority.  The Court's immigration decisions include ones requiring careful, but rather routine (if not ponderous), interpretation of the immigration statute as well as more general legal principles.

For reasons having nothing to do with immigration, few will soon forget the 2021 Term in U.S. Supreme Court history.  For weeks, news was dominated by a leaked draft opinion in a blockbuster abortion case, which foreshadowed the overruling of Roe v. Wade (1973) in Dobbs v. Jackson Women's Health Organization.  In addition, controversy surrounded conservative Justice Clarence Thomas's ethical obligations in connection with the Court's consideration of cases in which his wife's political activities were implicated. 

This blog post looked at "The Overruling of Roe v. Wade and Immigrants."  The demise of Roe v. Wade undoubtedly will affect immigrant women -- especially poor ones (and here) -- in the United States   It will take some time to see the full impacts of Dobbs v. Jackson Women's Health.  Many questions will arise about the scope and breadth of the decision.  Will, for example, the federal government continue to provide access to abortions for immigrant women in detention?  Access to an abortion by a detained immigrant teen was the subject of litigation a few years back.  Some women may feel it necessary to travel to Mexico for an abortion.  Can a state bar travel outside the state to do so?  

On the last day of the 2021 Term, Associate Justice Stephen Breyer retired and the first African American woman Justice, Ketanji Brown Jackson, was sworn in to replace him.  During her confirmation hearings, Judge Jackson was quizzed on expedited removal ruling.  Here is a review of the Immigration Record of Judge Ketanji Brown Jackson, President Biden's Supreme Court Nominee.

With the retirement of Justice Stephen Breyer, the Court lost the author of a memorable majority opinion in Zadvydas v. Davis (2001), which reasoned that the prospect of indefinite detention of a noncitizen would raise "serious" constitutional questions.  He wrote "[b]ased on our conclusion that indefinite detention of aliens . . . . would raise serious constitutional concerns, we construe the statute to contain an implicit 'reasonable time' limitation, the application of which is subject to federal-court review."  Contrary to the teachings of the plenary power doctrine, which directs the courts to defer to the immigration judgments of the President and Congress, Justice Breyer did not show special deference to the U.S. government's immigration decision in that instance.  Zadvydas v. Davis has undermined the decision in recent years.

3.  Tragedy in San Antonio. Deaths on the Border Continue

A tragic mass death of migrants being trafficked in a truck/trailer into the United States in San Antonio shocked the nation, reminding us of the deadly consequences of contemporary migration flows.  See Death on the Border Chapter 101:   46 Migrants Reported Dead in Truck/Trailer in San Antonio, Texas.  In a statement on the tragedy, President Biden acknowledged that the event may be "the deadliest people smuggling tragedy in recent U.S. history."

The San Antonio deaths are the tip of the iceberg.  Border deaths are a regular part of U.S./Mexico border life and are an international phenomenon as well.  See IOM Report: More Than 50,000 Migrant Deaths; CNN: A record number of migrants have died crossing the US-Mexico border.

Deaths of migrants along the U.S./Mexico border have made the news for years.  See, for a few examples, hereherehere.  The death toll continues to mount.  Earlier this year, CNN reported that nearly 750 migrants have died at the U.S./Mexico border this fiscal year, a new record, according to Department of Homeland Security figures.  Migrants often face treacherous terrain when crossing the border - including oppressive desert heat, dangerous waters, and falling from the border wall.

4.  President Trump Announces 2024 Run for President

Can you believe it?  Donald Trump announced his 2024 run for President.  On the same day that a federal court found that his administration's extraordinary Title 42 order was arbitrary and capriciousDonald Trump announced that he would again run for PresidentHe made it clear that immigration enforcement would be a major plank in his platform.  President Trump, of course, took the most aggressive enforcement measures of any modern U.S. President.

5.  The World Welcomes Ukrainian Refugees Flee the Russian Invasion

The Russian invasion of Ukraine led to a mass migration of refugees.  European nations embraced them with open arms.  A number of posts on the ImmigrationProf blog (and here) have highlighted the differential treatment of Ukrainian refugees and those from Syria, Afghanistan, and Central America.  Voice of America released a report entitled "Immigration Experts Contrast US Support for Ukrainian, Afghan Refugees."  Here are a few more stories on the treatment of Ukrainian refugees: Ukrainian refugee crisis already ranks among the world's worst in recent history Refugee Double Standard: What the Global Response to Ukrainian Refugees Teaches Welcome for Ukrainians reveals 'hypocrisy' of Irish immigration system? "Fortress Europe" opens for Ukrainian refugees but keeps others out Ukrainian Refugees and Racism

6.  Migrants Flee Chaos in Venezuela

Political and economic turmoil in Venezuela led to a flow of migrants from that South American nation.  See Migrants from Venezuela, Nicaragua and Cuba are driving apprehensions at the U.S./Mexico border; AP -- US officials: Border crossings soar among Venezuelans.

Consistent with other news reports (and here), CNN reported that U.S. government data showed that "[i]n August alone, immigration agents encountered more than 203,000 individuals at the southern border. Migrants from just three countries - Venezuela, Nicaragua and Cuba - made up about 56,000 of those encounters, or about 28 percent . . . ."   The increase in migration from these three nations reduced the share of migrants coming from Mexico and Central America.  

7. Top Trump Advisor Steve Bannon Arrested for Fraud in Connection with Fundraising to Build a Border Wall

At one time a top Trump advisor, Steve Bannon in September surrendered on New York state fraud charges related to fundraising to build the wall along the U.S./Mexico border.  The state charges are based on the same conduct that Bannon was charged with by federal prosecutors in 2020. Then-President Donald Trump pardoned Bannon on the federal fraud charges. Presidential pardons do not apply to state charges.  The prosecution is pending.

8.  10th Anniversary of  DACA

June 15, 2022 marked the 10 year anniversary of the announcement by President Barack Obama of the Deferred Action for Childhood Arrivals (DACA) policy.  DACA was a major immigration milestone of the 21st century and provided limited relief to hundreds of thousands of young noncitizens.

Although the Supreme Court invalidated the Trump administration's attempt to rescind DACA, the Biden administration has met formidable judicial resistance to continuing the policy.  The lower courts have not been friendly to the administration's efforts to revive DACA and litigation continues over the future of DACA.

9.  UK's Policy of Shipping Asylum Seekers to Rwanda Challenged

The following news story did not get the attention in the United States that it deserves.  Kit Johnson blogged about the United Kingdom's extraordinary decision to ship asylum seekers to Rwanda.  Yes, Rwanda.  Click here for an Associated Press discussing how the policy operates.  The controversy over the policy continues.  Rwanda, really?

10.  The Holy Grail?  Immigration Reform.  Forget About It.

Congress discussed at various times the possibility of long-awaited immigration reform.  A possible proposal briefly made the news as the lame duck Congress moved toward the end of 2022.  See Is There a Possibility for Bipartisan (and Limited) Immigration Reform?

The recent chatter about the possibility of bipartisan immigration reform has dissipated.  Senators Kyrsten Sinema, who recently left the Democratic Party to become an Independent from Arizona, and Thom Tillis (R-NC), floated a framework for immigration reform.  It would have provided legal status for young undocumented immigrants and appropriations for additional border security.  To this point, reform has not come.  Forget about it.


1.  UC Hastings Law Center on Race, Immigration, Citizenship, and Equality

ImmigrationProf blogger and Professor Ming Hsu Chen this fall launched a center at UC Hastings that will pursue research on equality issues and collaborate with other scholars and academic institutions.  Chen previously founded the Immigration and Citizenship Law Program at the University of Colorado.

The Center on Race, Immigration, Citizenship, and Equality (RICE) will offer lectures, conferences, panel discussions, research projects, student employment opportunities, and law classes with fieldwork components. It will promote scholarly engagement and forge links between other centers at UC Hastings, including the Center for Gender and Refugee Studies and the Center for Racial and Economic Justice.

2.  Passing of Immigration Law Professors

Legal academia in 2022 lost two wonderful and influential immigration law professors.

Funeral Services for Professor Michael OIivasRIP Michael Olivas Immigration Scholar

We lost an influential immigration scholar Professor Michael Olivas.  He had been honored in 2010 as this blog's Immigration Professor of the Year.  Professor Olivas was an influential immigration law scholar and a leading figure in legal education.  One strand of Professor Olivas's vast body of scholarship focused on issues at the intersection of immigration and Latina/o civil rights.  He also was a wonderful immigration colleague and organized the inaugural Immigration Law Teachers workshop in New Mexico in 1992.

RIP Professor Anna Shavers, Friend and Colleague

We also lost another wonderful person and influential immigration law professor, Anna W. Shavers, Cline Willliams Professor of Citizenship Law and associate dean for diversity and inclusion at the University of Nebraska College of Law.  She was simply the most decent person one could ever want to meet.  And she was an important immigration scholar.  Here is the University of Nebraska's statement on Professor Shavers's passing.

3.  Welcome Austin Kocher, New ImmigrationProf Blogger

In January, the ImmigrationProf blog announced the addition of blogger Austin Kocher, Research Associate Professor for the Transactional Records Access Clearinghouse.  Check out his profile.  TRAC is a research institute that uses Freedom of Information Act requests to study the federal government.  

Sports Page

Immigrants made the sports pages in 2022.  Here are a few headlines:

1.  Immigrants and the World Cup  

Argentina beat France in the finals on penalty kicks and took home the World Cup.  Migrant labor, with abuses reported, made the World Cup possible in Qatar.  Some may be surprised that many of the soccer players were not born in the country that they represented in the competition.      

2.  Game, set, match:  Novak Djokovic loses visa appeal, leaves country ahead of Australian Open

Last January, the saga of professional tennis champion Novak Djokovi seeking to defend his title in the Australian Open finally came to an end.  CNN reported that "[i]n a statement released after his appeal was dismissed, Djokovic said he would cooperate with authorities in arranging his departure from the country and confirmed he would not be playing in the Australian Open."  According to CNN, "Judge James Allsop said earlier that the court's ruling to uphold the immigration minister's decision to revoke Djokovic's visa was unanimous."

3.  Boston Celtic Changes Name to Freedom, calls becoming U.S. citizen "unforgettable"

At the very end of 2021, a National Basketball Association Boston Celtics player changed his name from Enes Kanter to Enes Kanter Freedom in celebration of becoming a U.S. citizen.  He said that taking the citizenship oath was "maybe the most unforgettable moment that I had in my life." An immigrant from Turkey, Freedom has been an outspoken critic of President Recep Tayyip Erdoğan and the Turkish government.  NPR interviewed Freedom about why he changed his name and his support for a boycott of the Olympics in China.

Society Page

An immigrant with expensive tastes, a propensity for con jobs, and the subject of a hit Netflix series, faced removal from the United States.  See Inside fake German heiress Anna Sorokin's immigration battle.

 The immigration case of Anna Sorokin, whose elaborate fraud captured the world's imagination, continues.  The subject of the hit Netflix series "Inventing Anna", Sorokin served about four years in prison after found guilty of criminal charges. She had claimed to be a German heiress named Anna Delvey who had a $60 million inheritance and was raising funds to launch a Manhattan social club. Sorokin swindled hundreds of thousands of dollars from friends, banks and New York City luxury hotels to fund a lavish lifestyle.

July 14, 2022

Systemic Racism in the U.S. Immigration Laws

[Cross-posted from ImmigrationProf Blog]

By Kevin R. Johnson

In 1998, the Indiana Law Journal published my analysis of race and the U.S. immigration laws.  The Journal just published my latest article on the topic.  (A teaser for the article can be found here.).  The article is based on, and inspired by, my remarks in April 2021 at the Jerome Hall Lecture at Indiana University Maurer School of Law

This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.

Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court in an extraordinary decision that jars modern racial sensibilities declared that Congress possessed “plenary power”—absolute authority—over immigration and that racist immigration laws were immune from judicial review of their constitutionality.

The bedrock of U.S. immigration jurisprudence for more than a century and never overruled by the Supreme Court, the plenary power doctrine permits the treatment of immigrants in racially discriminatory ways consistent with the era of Jim Crow but completely at odds with modern constitutional law. The doctrine enabled President Trump, a fierce advocate of tough-as-nails immigration measures, to pursue the most extreme immigration program of any modern president, with
devastating impacts on noncitizens of color.

As the nation attempts to grapple with the Trump administration’s brutal treatment of immigrants, it is an especially opportune historical moment to reconsider the plenary power doctrine. Ultimately, the commitment to remove systemic racism from the nation’s social fabric requires the dismantling of the doctrine and meaningful constitutional review of the immigration laws. That, in turn, would open the possibilities to the removal of systemic racial injustice from immigration law and policy.

June 30, 2022

Supreme Court’s ‘Remain in Mexico’ ruling puts immigration policy in the hands of voters – as long as elected presidents follow the rules

[Cross-posted from The Conversation]

By Kevin R. Johnson

In the very last decision of its latest term, the Supreme Court released a major ruling that not only clears a barrier to ending a signature policy of the Trump administration but also signals that the future of immigration policy is in the hands of the electorate.

In Biden v. Texas, the Supreme Court rejected an effort to prevent the current president’s rollback of a Trump-era policy that requires asylum seekers arriving at the U.S. southern land border to be returned to Mexico while their claims were being processed.

The 5-4 decision means that the case will be returned to the lower courts court. But it also makes clear that whoever is control of the White House has the power to change directions in immigration policy – even drastic reversals of policy. It follows that presidents can do the same in other substantive legal areas as well, such as civil rights and environmental protection.

The rights (and wrongs) of remain

The issue in Biden v. Texas was whether the Biden administration could dismantle a Trump administration policy formally known as Migrant Protection Protocols but widely referred to as the “Remain in Mexico” policy.

As part of an array of immigration enforcement measures, the Trump administration announced the policy in late 2018 in response to numbers of migrants arriving at the U.S.-Mexico border.

But the Migrant Protection Protocols came under scrutiny amid concerns over the safety and conditions to which asylum seekers were subjected in camps under the supervision of Mexican authorities. Human Rights Watch found the policy sent “asylum seekers to face risks of kidnapping, extortion, rape, and other abuses in Mexico” while also violating “their right to seek asylum in the United States.”

Yet an attempt by the Biden administration to eliminate the protocols was barred by the U.S. Court of Appeals for the Fifth Circuit. The circuit judges found that the Biden administration had violated immigration law requiring the detention of asylum seekers.

The Supreme Court rejected this ruling. In a majority opinion written by Chief Justice John Roberts – joined by Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor and Brett Kavanaugh – the court held that the Biden administration’s decision to terminate the Migrant Protection Protocols did not violate federal immigration law. The state of Texas had argued that ending the “Remain in Mexico” policy violated a provision that every asylum seeker entering the country be returned or detained.

In his dissent, Justice Samuel Alito argued that the statute requires mandatory detention of migrants at the border. Justice Amy Coney Barrett’s dissent expressed the view that the Supreme Court lacked the jurisdiction and that the case should be remanded back to the lower courts.

Avoid the arbitrary, cease the capricious

The Supreme Court’s decision means the case will be sent back to the lower court to decide, but with the removal of a major legal obstacle preventing Biden from ending the “Remain in Mexico” policy. The Supreme Court held that the immigration law does not require mandatory detention of all asylum seekers while their claims are being decided.

But moreover, the court made clear that the president has the discretion to change direction in immigration policy and continue, or end, policies of the previous president.

That might seem self-evident. But it comes after another 5-4 decision penned by Chief Justice Roberts – 2020’s Department of Homeland Security v. Regents of the University of California, which held that a president could not act irrationally in changing immigration policy.

In that decision, the Supreme Court found that the Trump administration had acted in an arbitrary and capricious fashion in rescinding the Obama administration’s Deferred Action for Childhood Arrivals – or DACA – policy. That policy provided limited legal status and work authorization to undocumented migrants who came to the country as children, so-called Dreamers.

In the court’s view, the Trump administration had not adequately considered the interests of the migrant children in deciding to rescind the policy and had given inconsistent reasons about the basis for the rescission.

That ruling provided fuel for states to challenge the Biden administration when it attempted to roll back some Trump-era policies. For example, Arizona, along with other states, challenged Biden’s attempt to abandon a proposed rule change by the previous administration that would tighten the requirements on low- and moderate-income noncitizens seeking to come to the U.S. Although the Supreme Court initially accepted review of the case, it ultimately dismissed the appeal and declined to decide the merits.

In the end, the Supreme Court’s decision in Biden v. Texas stands for the simple proposition that presidential elections matter when it comes to government policy. As long as an incumbent administration follows the rules – including rational deliberation of the policy choices in front of it – it can, the Supreme Court has said, change immigration policy.

March 28, 2022

Opening the Border but Shutting the Door

[Cross-posted from ImmigrationProf Blog]

By Raquel Aldana

I sat across a group of Haitians at a small restaurant in Tijuana, La Antigüita Tamales. King Hall students had just finished legal consultations with them about their prospects for asylum in the U.S. We shared a meal and greeted each other as they talked amongst themselves in Creole. One of them asked me in good Spanish if I was with the group from the U.S. I nodded. Next week they will open the border, he said, and I will seek asylum. I smiled meekly and engaged him with his story. It weighed heavily on me to have to explain to him the many reasons why the predicted end of Title 42 (not official yet I cautioned him) would unlikely alter the course of his fate. But it seemed like since our arrival, my students and I could offer little hope to most asylum seekers that an open border meant an open door, at least to them.  

That morning alone I met two Mexican families facing terror in their own country. One young couple, with five young children, fled when a group threatened to kill them and their children. It proved too much when constant images of mutilated children landed on their phone daily for their alleged failure to pay a debt which had quadrupled in weeks when the terms of repayment shifted, and exuberant interests kicked in. Another mother was with her 22-year-old son who just two weeks ago had been kidnapped and tortured by a cartel and then released only to warn his family they would be killed if he and his younger brother failed to join them.  I tried my hardest to help these families prepare for an eventual credible fear interview. Attempting to fit their terror into the constraints of the nexus requirement proved frustrating and inhumane. For the parents, the why these cartels chose them and their children to terrorize seemed both irrelevant and obvious. I agreed. And yet, explaining the obvious, that these groups target the most vulnerable among them simply because they can, would not suffice under the immigration definition of particular social group. As we struggled together to construct a plausible particular social group, what should have been a slam dunk case became a low probability of success for U.S. asylum.        

Increasingly, most asylum seekers who fail to meet a dated and strict definition of asylum face cruel barriers and terrible odds even when they are allowed to make a claim. In El Salvador yesterday, a gang-related killing spree left 62 murdered in the streets in a single day. Most were vendors and other poor souls caught up in the terrible violence the government cannot or will not control. Neither the rates of the killings nor their cruelty was at all different from what Salvadoreans endured during the country’s other civil war. But then and now, Salvadoreans and Mexicans and Haitians and Guatemalans and Hondurans and many others facing so-called private forms of generalized terror encounter shut doors for asylum when they arrive at our borders. Remember when U.S. law turned a blind eye to domestic violence directed at women because it was so-called, a private sphere? This is not different. But there is nothing private about the violence asylum seekers from these nations are enduring. Their terror is in full public display and the root causes of it comes with public dirty hands, with our own nation bearing blame.

Our violent borders and our wars on drugs, fought inside and throughout the American hemisphere, are but two reasons why the U.S. government cannot simply dismiss the terror in these countries as privatized forms of violence we can ignore.

I set out to write a more celebratory blog. The past three days have been intense and, yet, during it, the enormous talent and commitment of eight King Hall students who traveled to Tijuana has been on full display. Over three days, Pamela, Jennifer, Michael, Vannalee, Monica, Lorena, Jazmine and Ivette met with over 150 migrants, some hoping to seek asylum, other hoping to return to their families and home after deportation. We came here with open eyes. We knew we would bear witness to trauma. We also knew we came bearing little hope from law. Despite this, the students did an amazing job with what they had and provided an enormous help to migrants. Sunday afternoon, for example, only two MPP cases remained; a Nicaraguan and a Colombian asylum seeker had hearings in two days, neither of them had lawyers. Over several hours, our students sat with them and helped draft a pro se case of how best to assert their claims. Each of our students has a story like that to share. They will share some of these stories and the insights they gleaned from their time in Tijuana on April 4 at Noon at King Hall, Room 1301 or over zoom. You can register here.

I want to close by acknowledging the heroes and sheroes we met in Tijuana. Among them, three amazing individuals deported from the US, Ester, Danny and Pricila, now run shelters, provide food, and otherwise support the legal and social needs of migrants. Our students fundraised for this cause, and we are sending donations to them to help them with their labor. It is not too late to add your grain of salt. You can do so here.  Finally, I want to thank Robert Irwin whose Humanizing Deportation Project set the stage for our work in Tijuana. I also want to thank King Hall for funding student travel, and the many other entities at UC Davis, like the Office for Public Scholarship and Engagement and the Global Migration Center for their amazing support.