November 12, 2019

DACA, Proposition 187, and the legacy of the Trump immigration enforcement revolution

[Cross-posted from CalMatters]

By Kevin Johnson

The Trump administration has implemented unprecedented immigration enforcement policies, prompting challenges from state governments, advocacy groups and the University of California. 

On Tuesday, the U.S. Supreme Court will hear oral arguments in three cases in which the University of California and others are challenging the Trump administration’s termination of the Deferred Action for Childhood Arrivals policy

The case will determine whether hundreds of thousands of young undocumented immigrants can stay in the country. The policy and ones like it regarding immigration could shape national politics for years to come, as Proposition 187 has shaped California politics.

DACA was the brainchild of Janet Napolitano, then Obama’s Homeland Security secretary and now UC president. It has allowed 800,000 young undocumented immigrants who came here as children with their parents to remain in the United States with authorization to lawfully work. 

Using conventional prosecutorial discretion in deciding which undocumented immigrants to prioritize for deportation from the United States, the Obama administration through DACA decided not to target for removal law-abiding young people brought to the United States as children. 

In a detailed opinion, the Office of Legal Counsel in the Department of Justice had concluded that DACA was lawful, and no court ever found DACA to be unlawful.  

DACA recipients relied on its relief in making life decisions. They attended colleges and universities, started careers, and began families. Importantly, DACA recipients were able to live without constant fear of removal. 

As a presidential candidate, Donald Trump criticized DACA as unlawful and promised that it would be dismantled. In September 2017, then-Attorney General Jeff Sessions announced the end of DACA. The Trump administration offered virtually no analysis for its claim that DACA was unlawful.

The Supreme Court will address the question whether, because the Trump administration offered little to justify its conclusory claims that DACA violated the law, the decision to rescind DACA is “arbitrary and capricious” in violation of federal administrative law.  

The court’s decision will literally change, for better or worse, the lives of hundreds of thousands of young immigrants.

President Trump has adopted other tough immigration policies, including family separation, mass detention, building a wall along the U.S.-Mexico border, and a Muslim travel ban. His policies have fueled activism that appears to have staying power.

Ultimately, the Trump immigration revolution might result in the same reaction that occurred after California voters approved Proposition 187, an anti-immigrant initiative that just celebrated its 25th anniversary.

The initiative would have stripped undocumented immigrants of public benefits, kicked them out of public schools, and required police to participate in verifying immigration status of persons with whom they come into contact.  

A federal court stopped most of the initiative from going into effect. But Proposition 187 dramatically transformed the politics of the Golden State. 

Latinx immigrants became U.S. citizens, and voted against the Republican Party that vilified immigrants. As new Latinx citizens became new Democratic voters, the Legislature became solidly Democratic and increasingly racially diverse, and consistently passes laws that protect immigrants, including declaring California to be a “sanctuary” for immigrants.

Some political responses to the Trump immigration initiatives resemble those experienced in post-Proposition 187 California. Naturalization rates are going up among Latinx immigrants.  Naturalized citizens are voting. 

The outcome of the DACA case being argued on Tuesday will determine the fate of hundreds of thousands of young people. But if DACA is ultimately eliminated, the long-term reaction to the Trump immigration approach could be far reaching.

Protestors have marched in support of DACA recipients. The University of California declared it would not provide names of DACA students to the government. The DACA showdown could be the next Proposition 187, this time on a national stage.

September 16, 2019

Some Thoughts on Sept. 11, 2001, and the Role of the Courts in Enforcing the Rule of Law

[Cross-posted from ImmigProfBlog]

By Kevin R. Johnson

Earlier this week, the Milton L. Schwartz/David F. Levi Inn of Court held its first meeting of the academic year at UC Davis School of Law.  Because the meeting was on the anniversary of Sept. 11, 2001, Judge Emily Vasquez asked me to offer some remarks on the impact of September 11 on the law.  Here are my remarks:

September 11, 2001. The words alone bring forth many images and emotions. The morning saw one of those rare events where people look back and think about where they were when they heard the news. It is hard to ever forget the television footage of the jet crashing into the World Trade Center. Closer to home, I will never forget the Sikh owners of the local 7/11 store who plastered American flags on the store windows, basically trying to convince people that they were not Muslim. This simple act spoke volumes about the tension in the air.

For a long while, some said that “9/11 changed everything.” That, I think, is an exaggeration. However, the events did have significant reverberations. Airplane travel became very different — forever. Armed National Guard members immediately were at California airports. Waiting in long lines for screening at airports became common. "Interacting" with TSA officers became a normal part of the airport experience.

The days that followed saw a blur of government responses. I think it fair to say that some people today have regrets about various missteps in the name of security. Some examples might include

1.    The treatment of Arabs and Muslims – many now think that “special registration” of Arab and Muslim men was unnecessary. Similarly, the mass dragnet and detention of young Arab and Muslim men is not generally looked on as one of the nation’s best moments.

2.    The use of Guantánamo and torture have been roundly condemned.

3.    The USA PATRIOT Act and its intrusion on privacy and individual rights has drawn criticism.

On the positive side of the ledger, the nation saw the inspirational rebuilding of the World Trade Center area, with a memorial and museum. The response reflects the resilience of the people of the United States. Who doesn’t like a good comeback story? In the film world, aren’t we on something like Rocky 13?

All that said, September 11 and security concerns remain with us and influence law and policy. But the courts – and this is the upbeat portion of my remarks – have stepped up. Consider the travel bans put into place by President Trump, which applied to noncitizens from a group of countries with predominantly Muslim populations. There actually were three bans, with the first one put into place in January 2018. The bans were rooted in the same fears that influenced the responses to September 11. Some claimed that they were anti-Muslim.

In the first version, it was not clear whether the ban applied to lawful permanent residents or only to temporary visitors to the United States. Nothing less than chaos resulted at airports from coast to coast. I am proud that UC Davis School of Law had students, alumni, and faculty head to airports to help noncitizens seeking admission into the United States. We even had a law professor who happened to be in New York City and went out to John F. Kennedy International Airport to help people in need. I can’t help but think that some of the willingness of people to help persons affected by the travel ban comes from remembering the injustice of some of the U.S. government’s responses to September 11.

The courts played a critically important role in narrowing the three bans, invalidating the first two. We might debate whether the final one was lawful. However, few would say that the final ban’s lawfulness is not a much closer question than the first one. Through judicial review, the courts in effect narrowed the ban.

In Trump v. Hawaii, the Supreme Court upheld the travel ban after engaging in judicial review of its lawfulness. Even though the Court only engaged in rational basis review, that itself is more than once was the case.  In the not-too-distant past, the courts have not even engaged in any review of immigration and national security decisions of the president and Congress. In addition, the Court finally overruled Korematsu v. United States, the case upholding the internment of persons of Japanese ancestry, citizens and noncitizens alike – a national blemish if there ever was one.

This leads me to a more general lesson as we work through challenging times. Time and again in recent years, the nation has seen courts enforcing the rule of law in these and other areas:

  • The rights of “enemy combatants”
  • Sanctuary litigation
  • Immigrant detention
  • Enforcement of the Flores settlement and protecting the rights of migrant children
  • Asylum policies
  • The litigation over the decision to rescind the Deferred Action for Childhood Arrivals (DACA) policy. This issue is currently before the Supreme Court.

The courts enforcing the rule of law include a conservative Supreme Court. Consider Sessions v. Dimaya (2018) in which a 5-4 Court held that a removal provision of the immigration laws was unconstitutional, an extraordinarily rare occurrence. In another case that surprised many Supreme Court watchers, a 5-4 Court in 2019 found that the Trump administration had not adequately explained its addition of a U.S. citizenship question on Census 2020. In my view, Chief Justice Roberts, who wrote for the majority, joined the more liberal justices to save the Court’s legitimacy as an institution separate from the political process.

Ultimately, my firm sense is that we have learned much from September 11. And I remain inspired by the role of the courts in enforcing the rule of law on national security matters. We all should be proud of that.

August 26, 2019

Changes for a landmark agreement mean immigrant children face harsher treatment in the U.S.

[Cross-posted from The Conversation]

By Kevin R. Johnson

The Trump administration is trying to terminate the Flores settlement, a legal agreement that determines how immigrant children are treated in U.S. immigration detention.

The 1997 settlement established basic standards for the treatment of unaccompanied minors who were in the custody of federal authorities for violating immigration laws.

It requires the federal government to place children with a close relative or family friend “without unnecessary delay,” rather than detaining them, and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Generally speaking, this has meant migrant children can be kept in federal immigrant detention for only 20 days.

But a new regulation, originally proposed by the Trump administration in 2018 and finalized on Aug. 21, would remove the requirements of the Flores settlement.

In the 1980s, the Reagan administration aggressively used detention of Central Americans as a device to deter migration from that region, where violent civil wars had caused tens of thousands to flee.

Central Americans arrested at the U.S.-Mexico border were held in custody – including many who sought asylum in the U.S. because they feared persecution if returned home.

Immigrant rights groups filed a series of lawsuits challenging various aspects of the detention policies, including denying migrants access to counsel, taking steps to encourage them to “consent” to deportation and detaining them in isolated locations far from families and attorneys.

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

But Flores was detained by federal authorities at the U.S. border for not having proper documentation permitting her to stay in the U.S.

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

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

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

The Flores settlement is a landmark agreement in no small part because Central Americans continue to flee violence in their homelands and the U.S. government has responded with mass detention of immigrant children.

Although the settlement was agreeable to the Clinton administration, the Trump administration strongly desires to detain families, including children, for periods longer than permitted by the settlement – in fact, indefinitely.

Litigation over enforcement of the Flores settlement has exploded during the Trump administration, which has detained migrant children in poor conditions along the U.S.-Mexico border since soon after taking office.

The lawsuits include a court case brought by immigrants’ rights and civil liberties groups in response to what they called the “imminent threat to the health and welfare” of migrant children in detention. U.S. border officials should have “promptly released children to their relatives and provided safe and sanitary detention conditions for all children in its custody,” said an attorney representing the groups that brought the action.

Similarly, in the summer of 2018, based on the Flores settlement, a federal court barred immigration authorities from giving children psychotropic drugs without consent of parents or legal guardians.

Conditions apparently have not improved in detention centers across the country. Several children have died while in custody since January, and public outcry over the conditions of detention for the migrants have led to numerous court fights.

During recent litigation seeking to enforce the Flores settlement, the Department of Justice made headlines for its defense of the detention conditions of migrant children. The judges of the court of appeals were incredulous at the government’s claim that soap and a toothbrush were not necessarily required for detained migrant children. Not surprisingly, the court flatly rejected the government’s claim.

Last year, the Trump administration requested to amend the settlement to allow it to indefinitely detain migrant children.

The courts consistently have denied these requests and have continued to monitor the detention of migrant children, as the Flores settlement requires them to do.

Importantly, the new rule will allow the Department of Homeland Security and Health and Human Services to respond to significant changes that have occurred since the Flores settlement agreement has been in place, including dramatic increases in the numbers of unaccompanied children and family units crossing into the United States.

The rule is slated to take effect on Oct. 23. But immigration and civil liberties advocates have vowed to challenge the rule, which will put the proposed change in front of U.S. District Judge Dolly M. Gee. Gee is the judge who denied the administration’s request last year to extend family detentions.

This is an updated version of an article originally published on Aug. 2, 2018 and revised on June 27, 2019.

August 20, 2019

Disability Rights in Contemporary Immigration Debates

[Cross-posted from ImmigrationProf Blog]

By Jasmine E. Harris

We cannot fully understand the treatment of immigrant detainees and the numerous lawsuits filed against ICE and the Trump Administration without attention to disability rights. Not only do these cases underscore the intersection of immigration and disability rights broadly, but, more concretely, they offer novel and underdeveloped remedial avenues rooted in disability law. Disability statutes, like the U.S. Constitution, apply to individuals in the United States irrespective of citizenship and immigration status.

Yesterday, a coalition of leading civil rights groups filed a nationwide class action in the Central District of California to challenge the systematic denial of constitutional and statutory rights of people with disabilities in immigrant detention centers. Abdallah Fraihat et al. v. U.S. Immigration and Customs Enforcement et al., No. 5:19-cv-01546 (C.D. Cal. Aug 19, 2019) (hereinafter, Fraihat Complaint). The putative plaintiffs are fifteen individuals detained at eight different facilities in six states, representing a putative class of approximately fifty-five thousand immigrants imprisoned by ICE daily, and two nonprofit organizations, Al Otro Lado and the Inland Coalition for Immigrant Justice (ICIJ). The Fraihat Complaint challenges the federal government’s failure to ensure detained immigrants at one-hundred fifty-eight detention facilities receive appropriate medical and mental health care, its alleged use of segregation in violation of the Fifth Amendment of the U.S. Constitution, and its failure to ensure that detained immigrants with disabilities are provided legally-mandated accommodations and are not discriminated against as required by Section 504 of the Rehabilitation Act of 1973.  The Fraihat Complaint details dangerous conditions present in detention facilities that place detainees with medical and mental health disabilities in precarious situations. Examples include self-accommodating wheelchair users without assistive mobility devices being forced to rely on fellow detainees to carry them; and people denied access to medications to manage chronic illness, exacerbating current disabilities and generating new ones.

Fraihat builds on well-established substantive and procedural precedents in the prisoners’ rights context. First, the key theory of liability is that Immigration and Customs Enforcement (ICE) cannot avoid statutory and constitutional duties by contracting with third parties to manage and operate detention facilities. Although ICE directly operates only a handful of detention facilities, plaintiffs rely on familiar agency principles to hold ICE, the Department of Homeland Security, and institutional actors liable for their failure to monitor, investigate, and remedy alleged systematic violations at approximately one-hundred fifty-three facilities run by local sheriffs’ offices and private contractors.  Among those implicated, the GEO Group and CoreCivic (formerly “Corrections Corporation of America”) are two repeat defendants in prison condition cases. The fact that ICE has failed to effectively monitor and oversee the daily management of these private contractors, and to take effective measures when it learns of problems in those centers under their care and control, is not news. Consider this recent report from California Department of Justice detailing the findings from an investigation of all ten detention facilities in the state. Xavier Becerra, Cal. Att’y Gen., Immigration Detention in California, Cal. Dep’t of Justice, at 61, 82, 123 (Feb. 2019) (finding highly-restrictive prison-like conditions including required uniforms, compulsory prison-wage labor, restrictions on access to counsel and receipt of medical and mental health care).  Nor is use of class remediation novel. Fraihat relies on Ninth Circuit precedent in an analogous prisoners’ rights case for the proposition that class certification is appropriate. The Ninth Circuit in Parsons v. Ryan , 754 F.3d 657 (9th Cir. 2014)., held that prisoners could proceed as a class to challenge Arizona’s policies and practices denying access to medical care, dental care, mental health care, and punitively employing isolation.

With respect to remedies, Plaintiffs seek injunctive and declaratory relief. They want Defendants to stop using segregation as a punitive weapon, to effectively monitor federal contractors acting as their agents, and to build institutional capacity to attend to the needs of those detained.  For example, the Fraihat Complaint alleges that ICE and DHS have no system of tracking detainees’ medical and mental health needs or requests for care and accommodations.  As a result, when detainees are transferred from one facility to another, they are forced to restart the process of requesting medical care or reasonable accommodations from the beginning, leading to major delays in receipt of urgent medical attention and disability accommodations.

Plaintiffs in Fraihat face an impossible choice: either languish in detention without medical and mental health care and risk exacerbation of disabilities (including death) or abandon their immigration cases. The Trump Administration’s aggressive enforcement and use of detention has flooded an already broken system that, unfortunately (and perhaps inconceivably), continues to be years behind failing prisons in terms of compliance with disability rights laws. 

The lawsuit was filed by Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), the Southern Poverty Law Center (SPLC), and Orrick, Herrington & Sutcliffe LLP in the U.S District Court for the Central District of California. You can read the full Fraihat Complaint here.

Another recent example of disability rights at work in immigration debates is the Trump Administration’s amended “public charge” regulation, also the subject of California’s most recent lawsuit filed in federal court on August 16, 2019.  The new DHS regulation denies green cards to immigrants who use Medicaid, food stamps, housing vouchers or other forms of public assistance. While the rule may be problematic on its face, even if considered facially neutral, en arguendo, it will almost certainly have a disproportionate impact on immigrants with disabilities and their family members who are more likely to rely on Medicaid for health insurance. Before the DHS amendment, people with disabilities were considered “public charges” if they were likely to require institutional services such as long-term care. The expanded language in the rule may result in greater exclusion of people with disabilities and their families who rely on public insurance for the very supports necessary for them to access gainful employment and avoid economic dependency, such as personal home assistants or assistive technology.  Furthermore, other challenges to the Trump Administration’s immigration policies and practices, such as those pursuant to the settlement agreement in Flores v. Reno to challenge, among other policies, the Admiration’s separation of immigrant children at the U.S. border, while widely known, are filed within the immigration law cabinet without regard for the ways in which disability rights operate.  Flores, for example, requires that detained children be placed in “the least restrictive setting” in line with their age and other “special needs,” language that comes from the implementing regulations for Section 504 of the Rehabilitation Act of 1973 (requiring that services be provided in the “most integrated setting” appropriate). 

Perhaps most promising for this disability legal scholar is the recognition of disability rights as part of a broader civil rights agenda. My hope is that activists, practitioners, and scholars recognize the utility of these coalitions and consistently engage disability rights theoretical and legal principles to redress our most pressing social justice offenses of the day.

June 28, 2019

The Flores settlement: A 1985 case that sets the rules for how government can treat migrant children

[Cross-posted from the Chicago Tribune, Houston Chronicle and The Conversation]

What are the basic rules that determine how immigrant children are treated in U.S. immigration detention?

The Trump administration’s detention of migrant children in poor conditions along the U.S./Mexico border has repeatedly raised this question. The answer is a decades-old court case known as the Flores settlement. The settlement establishes the rules that the U.S. government must follow when it detains migrant children in enforcing immigration laws.

Litigation over enforcement of the Flores settlement has exploded in recent weeks. That includes a court case brought by immigrants’ rights and civil liberties groups in response to what they called the “imminent threat to the health and welfare” of migrant children in detention. U.S. border officials should have “promptly released children to their relatives and provided safe and sanitary detention conditions for all children in its custody,” said an attorney representing the groups that brought the action.

Similarly, last summer, based on the Flores settlement, a federal court barred immigration authorities from giving children psychotropic drugs without consent of parents or legal guardians.

Conditions apparently have not improved in detention centers across the country. The three children who died while in custody since January and public outcry over the conditions of detention for the youngest migrants led to the latest court fight.

During recent litigation seeking to enforce the Flores settlement, the Department of Justice made headlines as it defended the detention conditions of migrant children. The judges of the court of appeals were incredulous at the government’s claim that soap and a toothbrush were not necessarily required for detained migrant children.

Last year, the Trump administration requested to amend the settlement to allow it to indefinitely detain migrant children. The courts consistently have denied these requests and will continue to monitor the detention of migrant children, as the Flores settlement provides for them to do.

A regulation proposed by the Trump administration in 2018 would also remove the requirements of the Flores settlement, but it has not gone into effect.

So what was the Flores case about?

Case took years

In the 1980s, the Reagan administration aggressively used detention of Central Americans as a device to deter migration from that region, where violent civil wars had caused tens of thousands to flee.

Central Americans arrested at the U.S.-Mexico border were held in custody – including many who sought asylum in the U.S. because they feared persecution if returned home.

Immigrant rights groups filed a series of lawsuits challenging various aspects of the detention policies, including denying migrants access to counsel, taking steps to encourage them to “consent” to deportation and detaining them in isolated locations far from families and attorneys.

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

But Flores was detained by federal authorities at the U.S. border for not having proper documentation permitting her to stay in the U.S.

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

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

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

The Flores settlement established basic standards for the treatment of unaccompanied minors who were in the custody of federal authorities for violating immigration laws.

It requires the federal government to place children with a close relative or family friend “without unnecessary delay,” rather than detaining them; and to keep immigrant children who are in custody in the “least restrictive conditions” possible. Generally speaking, this has meant migrant children can be kept in federal immigrant detention for only 20 days.

The Flores settlement is a landmark agreement in no small part because Central Americans continue to flee violence in their homelands and the U.S. government has responded with mass detention of immigrant children.

Although the settlement was agreeable to the Clinton administration, the Trump administration strongly desires to detain families, including children, for periods longer than permitted by the Flores settlement.

This is an updated version of an article originally published on Aug. 2, 2018.

June 24, 2019

Book recommendation: Ghosts of Gold Mountain

Gold mountain

[Cross-posted from ImmigrationProf]

 

I strongly recommend the book Ghosts of Gold Mountain: The Epic Story of the Chinese Who Built the Transcontinental Railroad by Gordon H. Chang.  It previously was previewed on the ImmigrationProf blog.  I just finished this very readable book and found it to offer an incredibly important account of the Chinese immigrants who literally built the western end of the transcontinental railroad and forever changed the United States, revolutionizing commerce in the country and literally transforming the nation.

Chang offers a human account of the role of Chinese immigrants, who often have been rendered invisible in the history books, in the construction of the U.S. transcontinental railroad, which was completed in 1869.  He refers to the workers as "Railroad Chinese," most who hailed from southern China and performed the amazing feat of completing the transcontinental railroad through the incredibly rocky and steep Sierra Nevada mountains.  Ghosts of Gold Mountain tells us how the workers (almost all men but with a small group of women who, according to Chang, mostly worked in prostitution) lived (including what they ate and drank) in the United States (far from family and friends in China), how they were skilled railroad builders, resisted unfair treatment by their employers, and ultimately how the nation discarded them after their labor was no longer needed.  California railroad barons Leland Stanford and Charles and Edwin Crocker feature prominently in the story of the Railroad Chinese and the construction of the transcontinental railroad.  Although many initially opposed the use of Chinese labor in railroad construction, the workers proved themselves to be diligent, responsible, and dependable. 

Despite their daring achievements, the Chinese workers in the late 1800s were subject to discrimination, the Chinese exclusion laws designed to end immigration from China, and political movements led by white workers and others for their removal.  In my opinion, an understanding of how the nation treated Chinese immigrants is necessary to an understanding of the exclusion laws, which continue to influence -- through the "plenary power doctrine" and more -- immigration law and policy.

Like any good book, Ghosts of Gold Mountain got me thinking.  I did a little research after reading about the Chinese workers who settled in Truckee, California, a small town near Donner Lake, known for the ill-fated Donner Party. Not far from Truckee, the Railroad Chinese constructed a series of tunnels through granite at high altitudes, including during the harshest of winters.  Many Railroad Chinese died.  Today, Truckee, where I have vacationed for years, has almost no evidence of the Chinese settlement that was so prominent from 1840-1886.  Chinese people were basically forced to leave Truckee.  The efforts culminated in 1886; discrimination, boycotts of their businesses and labor, and violence, which later became known as the "Truckee method," basically forced the Chinese to leave the city.  In one spectacular case, a group of white defendants were acquitted of the killing of a Chinese man in 1876 in a raid on a house with Chinese workers known as the "Trout Creek Outrage."  During the same general time period, a secret white supremacist society known as the "Caucasian League" had hundreds of members in Truckee and thousands throughout the state.  At various times in the late 1800s, suspicious fires destroyed parts of the "Chinatown" section of Truckee.

In 1886, California held the Anti-Chinese Nonpartisan Convention in San Jose, which praised the intimidation fires, boycott, and exclusion —the Truckee Method — and adopted it across the state.  The Truckee method was successful because it was said to be “lawful and nonviolent.”

Support -- much of it couched as support for white workers -- for the federal Chinese exclusion laws came from California.   This historical backdrop thus influenced the Chinese exclusion laws.

 

June 18, 2019

By Playing Politics with DACA, Trump is Toying With Innocent Lives

[Cross-posted from the Globe Post]

Announced in 2012, Deferred Action for Childhood Arrivals (DACA) is one of the signature policies of the Barack Obama administration. It provided temporary relief, including work authorization, for noncitizens brought to the United States as children. Implemented within months of the 2012 election, the policy followed several years of record-setting numbers of removals and the failure of Congress to pass immigration reform.

Making immigration enforcement a cornerstone of his presidential campaign like no other in modern U.S. history, Donald J. Trump promised to dismantle DACA. That policy, however, for the most part, remains in place. Although President Trump blames the courts for barring his efforts to rescind DACA, the true reason is simpler and more sinister: the Trump administration continues to benefit from playing politics with immigrant lives.

The Supreme Court may well soon decide whether to review the lower court rulings halting DACA’s rescission. But even if the Court takes up the cases, it could still take a year or more for a final resolution. Lives will hang in the balance.

Trump’s Aggressive Immigration Measures

Exemplified by the advocacy for a wall along the U.S./Mexico border and the Muslim ban, Trump’s administration has put into place numerous aggressive immigration enforcement measures. Such measures also include ending Temporary Protected Status for Salvadorans, Haitians, Hondurans, Nicaraguans, and others, mass detention of Central Americans seeking asylum, and family separation.

The president also has sought to restrict legal immigration, specifically denigrating lawful family-based immigration as “chain migration” and calling for a new immigration system favoring skilled, educated, and English-speaking immigrants.

President Trump unquestionably sees it as politically beneficial to inject tough immigration talk into the news and, consequently, he often does so. DACA is just another political pawn in the larger immigration game.

DACA and Dreamers

Within days of taking office, President Trump acted on immigration, issuing the first executive order known as the “Muslim ban” and orders on border security and interior immigration enforcement.

Action on DACA took longer, however. Politics, pure and simple, explain the delay. While DACA’s death was rumored for months, a bipartisan group of members of Congress advocated maintaining the policy, which benefited a relatively popular group of immigrants who were in this country without authorization due to no fault of their own.

The political allure of the Dreamers can be seen in the many versions of an immigration bill known as the DREAM Act, which had the support of prominent Republicans as well as Democrats, over more than a decade.

Finally, in September 2017, then-Attorney General Jeff Sessions – not President Trump – announced the rescission of DACA. Yet DACA remains. Courts halted the rescission, questioning the reasoning offered by the Trump administration for rescinding the policy.

Courts Halt DACA Rescission

The U.S. Court of Appeals for the Ninth Circuit found that, because the administration’s claim that DACA was not lawful and simply wrong, the rescission was likely to be found “arbitrary and capricious” and in violation of the Administrative Procedure Act. It allowed an injunction barring DACA’s rescission to remain in place. A couple of weeks ago, the Fourth Circuit found that the decision to rescind DACA “was not adequately explained and thus was arbitrary and capricious.”

The Trump administration could quickly remedy what the courts said was missing: a rational explanation for rescinding the policy. The administration, for example, could say that Congress is the most appropriate branch to address the legal status of the DACA recipients. Importantly, no court has held that DACA is required by the immigration laws or that there is some other legal right to DACA relief. Rather, the courts have held that the Trump administration has not adequately explained its reasoning for dismantling DACA, an easily cured defect.

The Trump administration has not offered an adequate explanation because of politics. The young noncitizens who benefited from DACA are politically active and popular. There is little political upside to the administration to push to end DACA, which has some Republican support. The political benefits of blaming “liberal” courts for keeping DACA alive outweigh any benefits of actually abolishing the policy. In this vein, Trump frequently blames the courts and Congress for sidetracking his efforts to build the border wall, punish “sanctuary cities,” and the like.

DACA recipients and their allies have been active. Immigrant advocates have allowed their voices to be heard. Legal challenges to the DACA rescission, and many other Trump policies, have been largely successful. In early June, the U.S. House of Representatives passed the DREAM and Promise Act of 2019, which would provide relief to young undocumented immigrants, DACA recipients, and holders of Temporary Protected Status.

Human Impact

Immigration is a powerful political issue for President Trump. Although it energizes his base, the administration’s tough immigration stands have human impacts. The efforts to rescind DACA have frightened hundreds of thousands of DACA recipients who see their ability to remain in the United States – the only nation that many of them have ever truly known – placed in question.

Although the courts have required current DACA recipients to renew their relief, some recipients declined to renew, fearing possible removal if they sought any kind of relief from the U.S. government. In addition, the court injunctions did not require the administration to accept any new DACA applications. Thus, even though DACA has not been rescinded, it has been limited, and young immigrants have been harmed.

DACA unquestionably is an important issue. Sadly, the administration continues to play politics with peoples’ lives. Immigrants live and work in – and unquestionably are part of – our communities. Harsh rhetoric questioning their humanity, claiming that the nation is being invaded, and more will offer political benefits to the president but injure real people.

What the United States truly needs is for Congress to overhaul the immigration laws. The nation needs a 21st-century system for legal immigration. It needs a path to permanent legal status for undocumented immigrants, DACA recipients, and Temporary Protected Status holders. Until Congress acts, the nation will continue to see human casualties in the war on immigrants.

 

March 26, 2019

Justices' Immigration Detention Ruling May Have Small Impact

[Cross-posted from Law360]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March 25, 2019

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

[Cross-posted from Immigration Prof]

 

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

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

Pinera

Chilean President Sebastián Piñera

Pontificia Universidad Católica de Chile

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

Chile law

Universidad de Chile law school

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

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

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

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

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

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

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

Global Compact, Paragraph 15

Reasons Some States May Have Declined to Join the Global Compact

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

Immigration Regulation Raises Sensitive Domestic Political Issues

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

The Omnipresent Concern with Mass Migration.

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

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

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

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

Inconsistency with Contemporary U.S. Immigration Enforcement Policies

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

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

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

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

The Need for International Cooperation

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

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

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

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

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

February 4, 2019

Immigration and Civil Rights in an Era of Trump

By Kevin Johnson

[Cross-posted from ImmigrationProf Blog]

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

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

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

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

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

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

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

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

President Trump’s immigration initiatives share two fundamental characteristics.

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

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

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

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

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

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

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

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

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

1.   The Travel Bans

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

2.    “Chain Migration” and Reforming Legal Migration

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

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

3.    “Zero Tolerance” Policies

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

a.    Central American Asylum Applicants

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

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

b.   Sanctuary Cities

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

c.    DACA

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

d.    TPS

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

e.    Removals           

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

****

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

Conclusion

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

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