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September 19, 2017

The Pardon of Sheriff Joe Arpaio and the Rule of Law

[Cross-posted from Latinx Talk]

By Kevin Johnson

In August 2017, President Trump pardoned former Maricopa County (Arizona) Sheriff Joe Arpaio, who a federal court found guilty of criminal contempt for intentionally violating numerous court orders in a civil rights lawsuit. In so doing, President Trump pardoned a flagrant and repeated violator of Latina/o civil rights and sent a deeply troubling message to the entire nation.

For decades, the controversial sheriff’s law enforcement methods had struck justifiable fear into the hearts of immigrants and U.S. citizens of Mexican ancestry. Years ago, the Department of Justice concluded “that discrimination against Latino persons exists in a wide range of [Maricopa County Sheriff Office (MCSO)] practices.  [It] obtained compelling evidence showing that MCSO deputies routinely stop Latinos at much higher rates than similarly-situated non-Latinos...” Letter from Thomas E. Perez, Assistant Attorney General, to Bill Montgomery, County Attorney, Maricopa County, Dec. 15, 2011.

The conduct of former Sheriff Arpaio is part of a long, if not illustrious, history of discrimination in Arizona. The “Bisbee Deportation” of Mexican workers from the state in 1917 is an infamous civil rights milestone. Unfortunately, discrimination against Latina/os in Arizona remains to this day. The Tucson public schools continue to operate under a consent decree entered in a school desegregation case. A federal court this year found that the state acted with a discriminatory intent in eliminating Mexican American Studies from the public schools and thus violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. A series of immigration enforcement, English only, and other laws — some of them vetoed by the governor, others struck down by courts — targeted Latina/os in the state.

Defeated for re-election in 2016, Sheriff Arpaio had made a name for himself in unabashedly focusing on Latina/os in ostensibly enforcing the U.S. immigration laws. Time and again, he stated unequivocally that he would continue to do just that – despite being ordered by the courts to end the discrimination. Arpaio consistently showed cruelty and insensitivity toward inmates under his legal protection. He, for example, made detainees wear pink underwear and suffer the outdoors in scorching Arizona summer heat. Arpaio forced undocumented immigrants in custody to live in a segregated “tent city” that Arpaio himself bragged was a “concentration camp.”

In 2010, the Arizona legislature passed S.B. 1070, a law that Arpaio championed. Section 2(B) of the law, the “Show Your Papers” provision, generated great fear in the Latina/o community; it gave state and local law enforcement officers carte blanche to question people about their immigration status and to expand the already rampant racial profiling of Latina/os. With anti-Latino sentiment lurking in the background, the Arizona legislature passed S.B. 1070 with little, if any, concern for the civil rights of Latina/os. The U.S. Supreme Court in Arizona v. United States (2012) in large part struck down S.B. 1070 as unconstitutional.

After a trial in 2013 that saw overwhelming evidence of racial discrimination, a federal court in Melendres v. Arpaio found that the Maricopa County Sheriff’s Office led by Arpaio engaged in a pattern and practice of racial profiling of Latinos in criminal and immigration enforcement. However, that was not the basis for Arpaio’s criminal conviction. The contempt charge instead resulted from the court’s finding that Arpaio for years had intentionally violated numerous court orders designed to end the discriminatory practices of the Sheriff’s Office. The court held a trial in 2017 affording Arpaio a chance to rebut the charges that he had failed to end the discrimination and was not in contempt of court orders. He failed and the federal judge found that Arpaio simply refused to comply with the court orders and his sheriffs continued to discriminate.

In some ways, Joe Arpaio is the modern incarnation of Birmingham, Alabama’s infamous police chief Bull Connor, an ardent opponent of integration in the 1950s and 1960s who directed fire hoses and violence at civil rights marchers.  Boldly defying the civil rights laws, segregationists in the Jim Crow era, like Arpaio today, had to be schooled on the rule of law. In one famous example, President Eisenhower in 1957 deployed federal troops to enforce the Supreme Court’s decision outlawing segregated schools in Brown v. Board of Education (1954). Only then could African American students attend Little Rock Central High School in Arkansas.

Ironically enough, in advocating aggressive enforcement of the U.S. immigration laws, Trump repeatedly emphasized the need to follow the rule of law. But President Trump’s pardon of Arpaio for flagrant violations of the civil rights laws is wholly inconsistent with any conception of the rule of law.

Presidential pardons by their nature are controversial, with President Ford’s pardon of President Nixon for his role in the Watergate cover-up a famous example. Still, in light of Arpaio’s controversial record, the fact that his pardon for a criminal contempt conviction provoked a firestorm of controversy should not be surprising. Still, an American President never has pardoned a person who repeatedly, willfully, and intentionally refused to comply with court orders aimed at ending mass violations of the civil rights of racial minorities.

Arpaio in effect took the view that the rule of law did not apply in Maricopa County, Arizona. This explains why Attorney General Jeff Sessions reportedly told President Trump that he could not drop the charges against Arpaio. And it explains why Republicans and Democrats alike have condemned the Arpaio pardon.

President Trump justified the pardon by saying that the sheriff “was just doing his job.” However, Arpaio’s “job” as a law enforcement officer does not include breaking the law or engaging in a pattern and practice of racial discrimination against Latinos.  Nor does Arpaio’s job as sheriff include intentionally violating court orders. The efforts to nullify a court order vindicating the civil rights of vulnerable minorities are precisely the kinds of unlawful actions of the Southern segregationists of yesterday. In important respects, the Arpaio pardon is akin to jury nullification popular in the days of Jim Crow when juries, whatever the evidence, simply would not convict whites – including police — of killing African Americans.

We live in a time of deep political division. The nation has seen civil unrest unfold as violent clashes take place between white supremacists and counter-protesters. President Trump and his followers have inflamed passion by claiming that immigration laws must be enforced with impunity, whatever the civil rights consequences. The pardoning of Joe Arpaio is entirely consistent with the enforcement-at-all-costs mentality and the sacrificing of Latina/o civil rights for immigration enforcement.

In pardoning Arpaio, the president demonstrates that, despite his stated commitment to enforce the immigration laws at all costs, he is not equally committed to enforcement of civil rights laws. That lack of commitment also can be seen in his response to the troubling recent clashes in Charlottesville. President Trump has made the political decision, consistent with the one to dismantle the Deferred Action for Childhood Arrivals program, to side with those opposed to federal civil rights law — and against the rule of law. That is not the message that the nation needs at this time.

September 17, 2017

RAISE Act: Kevin Johnson and global scholars explain "merit-based" immigration

[Cross-posted from The Conversation]

Editor’s note: In February, U.S. Republican senators Tom Cotton and David Perdue, with President Donald Trump, unveiled an immigration bill called the RAISE Act. It would create a “merit-based” points system for evaluating foreigners applying to come to the U.S. through an employment visa.

 

The senators said that in drafting it, they had looked to best practices for points-based systems like those in Canada and Australia. As Congress takes up the issue of immigration, we turned to our global network of scholars to get their perspective on how points systems work.



Kevin Johnson – University of California, Davis, United States

The RAISE Act would drastically reshape American immigration. It will also likely have the unintended consequence of increasing undocumented immigration.

Approximately one million immigrants are granted lawful permanent residence in the U.S. every year. 

The RAISE Act would cut annual legal immigrant admissions by one-half, primarily by eliminating family-sponsored immigration visas for those who are not spouses or minor children of U.S. citizens and permanent residents. This would reduce the total number of family-sponsored green cards from 226,000 to 88,000. Cuts to family-based immigration would primarily affect prospective immigrants from Mexico, China, India, the Philippines and Cuba.

These changes would transform the overall U.S. immigration system from primarily family-based to employment-based. Under the current system, most employment-based immigrants are highly skilled and make up only about 14 percent of those who receive green cards.

Under the RAISE Act, employment-based immigrants would make up a majority of those who receive green cards. The bill would create new criteria for evaluating the most highly skilled applicants.

In the proposed points system, applicants would earn points for meeting certain criteria such as age (preference for person between ages 26 and 30), investing US$1.35 million in the U.S. and having a degree. Extra points are awarded for degrees earned in the U.S. and in a STEM field. Nobel Prize winners, professional athletes and English language speakers would also get extra points.

The bill also seeks to eliminate the Diversity Visa program, which allocates 50,000 visas a year for countries with low rates of immigration to the United States. In addition it would cap refugee admissions at 50,000, which would be the lowest ceiling set in modern U.S. history. 

Halving legal immigration will likely increase the pressures for undocumented immigration. The current limits on legal immigration have already brought roughly 11 million undocumented immigrants to the U.S. 

This is especially the case because the merit-based system will not address the high demand in the United States for low- and medium-skilled workers in the agricultural, construction and service industries. 

Alex Reilly – University of Adelaide, Australia

In 2015-16, Australia accepted 189,770 permanent migrants through its skilled and family immigration streams. In addition, Australia permanently resettled just under 18,000 refugees and other humanitarian migrants. This has been the level of migration to Australia for more than 10 years, adding nearly 1 percent to the Australian population of 24 million every year. This is a considerably larger proportion than the U.S. admits through its migration programs.

Twenty years ago, more migrants came through the family stream than the employer stream. In 2015-16, 67.7 percent of migrants came through the skilled stream and 30.8 percent through the family stream. This change is a direct result of government policy prioritizing skilled migration because of its contribution to the economy.

However, these figures are deceptive, as numbers in the skilled migration stream include partners and dependents of primary applicants. So approximately half of all skilled migrants are actually family members of skilled migrants who do not have to meet the eligibility requirements of the primary applicant.

There are two pathways for skilled migration. The first, general skilled migration, requires applicants to have occupations on the skilled occupation list. Most of these skills are in professional areas such as medicine or engineering, or trades in demand in the economy such as plumbers and electricians. The list is updated regularly based on an assessment of Australia’s economic needs.

Visas for this group are awarded on a points system similar to what is being proposed in the U.S. Points are awarded for age, English language proficiency, skilled employment outside Australia, skilled employment in Australia and qualifications that are linked to occupations on the skilled occupation list. There are also points available for an Australian education, being accredited in a community language, studying in regional Australia, partner qualifications and completing a professional year in Australia. Although migrants in this skilled stream are highly qualified, they do not necessarily find employment in their area of expertise and many remain underemployed. 

The second pathway is for skilled migrants with an employer sponsor. This pathway is open to migrants with wider range of skills and has the advantage of migrants being in guaranteed employment when they first arrive in Australia. Employers must demonstrate that they have a skilled position available, and that there are no Australians willing or able to take up the position. This requires employers to have advertised jobs locally before seeking migrants to do the work. 

Almost all employer-sponsored migrants apply from within Australia, and 44 percent of independent skilled migrants also apply from within Australia, transitioning from temporary work, international student and working holiday maker visas. This reflects the very high number of temporary migrants working and studying on these visas in Australia – 750,000 in December 2016.

Mireille Paquet – Concordia University, Montreal, Canada

In 2015-2016, Canada admitted 271,845 permanent immigrants. Canada’s permanent migration inflows resemble those of Australia but are generally smaller than those received by the United States. Immigration is the largest contributor to population growth in Canada since the early 2000s.

The permanent immigration program is divided into three main streams: economic, family and humanitarian. The economic stream accounted for about 60 percent of the total permanent immigration to Canada in 2015-2016. Family made up 24 percent of the total immigration to the country. These proportions have remained relatively stable over the last 15 years, with economic immigration representing the largest share of those selected for permanent settlement in the countries. 

The economic stream for permanent immigration is currently divided into several programs. The Federal Skilled Workers Program is often used as the flagship example of Canada’s approach to selecting immigrants in relation to their expected economic contributions. U.S. President Donald Trump has praised it on the grounds that it would create economic mobility for both native-born Americans and immigrants.

To be considered, candidates must meet baseline criteria for work experience, language proficiency in at least one of the two official languages – French or English – and education. Candidates are then assessed using a 100-point selection grid that considers factors such as education, experience, age, arranged employment in Canada and adaptability. Adaptability refers to spouse or partner language level, past work studies in Canada for the applicant and spouse or partner, and the existence of relatives in Canada.

To be eligible, a candidate must score 67 points or higher. The pool of eligible candidates are then ranked. The highest-ranking individuals receive invitations to apply for permanent residence. This system, called Express Entry, relies on a comprehensive ranking system that involves a total of 1,000 factors. The minister of immigration issues the number of invitations to be extended every month.

Despite a sophisticated assessment system, research demonstrates that immigrants to Canada still face challenges in finding jobs and achieving economic mobility in the short and medium term. Gender, race and geographic position in the country and employment sector are all factors that affect economic integration of immigrants to Canada.

September 14, 2017

End of DACA is an Opportunity for Real Immigration Reform

By Kevin R. Johnson

[Cross-posted from the Daily Journal]

After months of speculation and rumor that has frightened immigrant communities across the United States, President Donald Trump has announced the end of the Deferred Action for Childhood Arrivals program. President Barack Obama created the program known as DACA to help protect undocumented immigrants brought to the United States as children from deportation. Since 2012 DACA has provided relief, and work authorization, to nearly 800,000 undocumented minors.

I laud the Obama administration for the courage and ingenuity to create DACA. Trump should not have ended the program that has benefited so many immigrants. But, there may be a silver lining in Trump's dismantling of DACA: He is delaying the end of the program for six months. This gives Congress time to pass a law that would provide enduring protections for the DREAMers, the term used to refer to undocumented college students who have become a potent political force. And it even could spur more far-reaching immigration reform.

The end of DACA has been met with expressions of nothing less than grief and a firestorm of bipartisan criticism. House Speaker Paul Ryan and Republican Sen. Orrin Hatch of Utah, for example, lobbied the president not to end the program. DACA seemed to have more supporters than ever. In the coming weeks, the nation is likely to see a great many protests and calls for political action.

It is worth remembering that Obama created DACA after Congress failed for years to enact comprehensive immigration reform. As he emphasized at the time, the deferred action program was a limited, and temporary, response to congressional gridlock on immigration. In my estimation, the creation of DACA was a constitutional and eminently sensible approach to a most sympathetic cohort of immigrants.

California has more DACA recipients than any other state - thousands of college students use the program that allows them to obtain authorization to work their way through school. In short, DACA students are seeking a better life than their parents.

In light of the fact that virtually all agree that the current immigration system is broken, Democratic and Republican political leaders should welcome the opportunity to reconsider immigration reform. Critics of DACA say it was flawed from the beginning because Obama created it through executive order. They instead argue that Congress is the appropriate branch of government to provide relief to undocumented immigrants. Whether one buys that argument or not, Congress now must act to protect DACA recipients and, in so doing, can once again tackle immigration reform.

In the end, DACA is just one piece of the larger immigration debate. The reform of our immigration laws is, needless to say, a complex problem. In 2013 a bipartisan group of senators passed carefully-crafted legislation aimed at reforming the legal immigration system, bolstering enforcement, and providing legal status to the 11 million undocumented immigrants in the United States. But the Republican-controlled House of Representatives never put the legislation to a vote.

The immigration reform proposal on the table today unfortunately would not solve any of these problems, but rather make them worse.  During the summer, Trump expressed support for a proposal called the Reforming American Immigration for Strong Employment (RAISE) Act, co-sponsored by Republican Senators Tom Cotton of Arkansas and David Purdue of Georgia. The Act would drastically reshape American immigration and likely increase pressures on undocumented immigration.

The RAISE Act would reduce legal immigration by 50 percent over the next decade. The government annually grants lawful permanent residence to approximately 1 million immigrants from countries including Mexico, China and India. About two-thirds of visas in the United States are allocated because applicants have family members already in the country. But this bill would eliminate all family sponsorship beyond spouses and minor children of U.S. citizens and legal permanent residents.

Besides dramatically reducing family-based immigration, the RAISE Act would replace the current selection scheme with a points system based on "merit." Applicants would earn points that favor high-paying job offers, advanced degrees and huge financial investments of more than $1 million in the United States. People who are closest to age 25 and have high English proficiency scores would also receive preference. The act would do nothing to help ensure the the lawful admission of workers in agriculture and the service industries, which today employs many undocumented workers.

The changes proposed under the RAISE Act would only exacerbate the current problem of undocumented immigration. The United States has roughly 11 million undocumented immigrants largely because of the unrealistic restrictions on legal immigration under current laws. California is home to nearly a quarter of the nation's undocumented immigrants.  

If Congress enacts a system like the RAISE Act, it will not address the high demand in the United States for low- and medium-skilled workers. Who will fill the jobs in agriculture, construction and service industries that undocumented immigrants overwhelmingly perform today?

By eliminating DACA Trump is giving Congress a historic opportunity for immigration reform. This is a chance for lawmakers to enact more profound immigration reform that is fair, enforceable, and lives up to the nation's ideals. Such reform is just what the nation needs in these troubled times.

September 12, 2017

Undocumented Immigrants Should Not Have to Risk Deportation for Talking to Police

By Kevin R. Johnson

[Cross-posted from the Sacramento Bee]

In 2015, the San Francisco Sheriff's Department released an undocumented immigrant as required by local ordinance. He later allegedly murdered Kate Steinle. This undeniable tragedy stirred a national controversy over "sanctuary laws."

But many state and local governments had similar laws and policies that require the release of noncitizens from custody in the absence of a federal warrant. The Los Angeles Police Department, among others, limits police inquiry into the immigration status of crime victims, witnesses and suspects, a policy that dates to the late police Chief Daryl Gates' tenure in 1979.

The basis for such policies stems from an important principle: effective law enforcement requires trust of all residents, including immigrants. To build that trust, local government cannot appear to be part of the federal immigration enforcement machine. For that fundamental reason, there traditionally has been a separation between local police and federal law enforcement.

Consistent with that long tradition, a proverbial flood of jurisdictions across the country responded to record numbers of removals by the Obama administration. The goal was to enact laws and policies to protect state and local government autonomy. In 2014, the California Legislature passed the TRUST Act, which said state and local law enforcement did not have to cooperate with the U.S. government for arrests of noncitizens who committed minor crimes.

Now the Legislature is considering the California Values Act, Senate Bill 54 by Senate President Pro Tem Kevin de León, D-Los Angeles. The bill is a response to President Donald Trump's repeated threats of mass deportations, made all the more real with the rescission last week of the Deferred Action for Childhood Arrivals (DACA) program.

SB 54 would provide safeguards to ensure that immigrants can visit government offices, work with police, take their children to school and go to the doctor without fear of deportation. In line with policies already in place, it also would allow local and state jurisdictions to refuse to comply with federal immigration enforcement if an undocumented immigrant has not committed a major crime.

The act responds to a palpable fear among immigrants, who are anxious about any interactions with state and local government officials. Specifically, they believe that information provided to those local officials could end up in the hands of federal immigration enforcement authorities. And who could blame them?

In recent months, U.S. Immigration and Customs Enforcement officials have gone to state and local courthouses to make targeted arrests of undocumented immigrants facing criminal charges, even traffic infractions. Immigration officials have gone so far as to arrest an undocumented immigrant after he dropped his child off at school.

The Trump administration no doubt will attack the California Values Act, as it has attacked "sanctuary cities" generally. In a January executive order, the administration threatened to eliminate all federal funding to so-called sanctuary cities. A federal court in San Francisco ruled that the defunding proposal was unconstitutional.

The U.S. Supreme Court has also weighed in by striking down state laws, such as Arizona's "Show Your Papers" law, SB 1070. That law mandated that state and local law enforcement officers participate in immigration enforcement. Although state and local officials cannot regulate immigration as Arizona tried to do, they can determine how to provide essential services to immigrants in their communities. That is precisely what the Values Act seeks to do.

California's Values Act is not an attempt to regulate immigration. Rather, it is an attempt to serve and protect all California residents, consistent with federal law. De León's bill is a legitimate effort by the state to determine how it interacts with, and protects, its citizens.

September 12, 2017

What Do Dreamers Do Now?

By Rose Cuison Villazor

[Cross-posted from the New York Times]

DAVIS, CALIF. - On Tuesday Attorney General Jeff Sessions announced the White House's plan to rescind protections for young immigrants who arrived in the United States illegally as children, but with a six-month grace period to let Congress respond. The program, Deferred Action for Childhood Arrivals, grants those who qualify for the program a reprieve from deportation, which they must renew every two years.

The White House claims that DACA, which President Barack Obama announced in 2012 and which has broad bipartisan support, is illegal, but deferred action is a widely accepted legal principle. Over the last five years, DACA has become a core part of America's immigration landscape: DACA has been granted to more than 800,000 immigrants, allowing them to attend school, work and contribute to their communities. Its repeal would upend the lives not only of these "Dreamers," as participants are called, but also of their families, co-workers and employers.

The announcement leaves the Dreamers with countless questions. While authorities have said they won't prioritize DACA participants after the program ends, how easily could that change? Will Congress come through with a replacement? The announcement says that information provided in DACA applications would not be proactively shared, with some exceptions - but does that leave open the possibility that information may be shared upon request from enforcement agencies?

At least two things are clear, however. First, the government must continue to treat current DACA recipients as people with deferred action, who should not be removed unless they violate the terms of DACA. Officials say that some recipients will be allowed to keep their status and even renew; the government should make this clear and apply it to all current DACA participants. The Department of Homeland Security has its own standard operating procedures that specify the process of how one's particular DACA approval may be rescinded. The government must continue to comply with its own guidelines and not revoke a person's deferral arbitrarily.

Second, and most important, is what the government does with the information Dreamers gave it as part of their application - information that amounts to an admission of their having entered the country illegally, albeit without their knowledge, since they were children at the time. United States Citizenship and Immigration Services, which administers DACA, should delete all their information.Every weekday, get thought-provoking commentary from Op-Ed columnists, the Times editorial board and contributing writers from around the world.

Applicants gave that information with the assurance that it would not be shared with Immigration and Customs Enforcement or Customs and Border Enforcement, the agencies that otherwise would be charged with deporting them. As the Citizenship and Immigration Services' own guidance states, "information provided in this request is protected from disclosure to ICE or C.B.P.," unless the applicant commits a crime or poses a national security threat.

Dreamers divulged information to the government, expecting that their information would not be shared. The information includes not only potentially incriminating information like date of initial entry and length of stay in the United States, but also details like their names, addresses, school information and Social Security numbers - precisely what the government needs to locate and detain them quickly.

As Zachary Price of the University of California Hastings College of the Law has argued, using such information would constitute entrapment. Courts have thrown out convictions of defendants who were prosecuted based on actions, statements or information they provided when they were assured that their conduct would not lead to adverse action. Dreamers facing deportation could apply the same logic here. Absent that information, it would be much harder, though not impossible, to deport them. Allowing the government to use their information would be, to quote the Supreme Court in a leading entrapment case, "shocking to the universal sense of justice."

This is information that Dreamers would not have given the government without such nondisclosure assurances. They thought they could trust the government. In fact, in some cases lawyers advised clients who were considering applying not to, precisely, they said, because the government couldn't be trusted.

Allowing the government to use the information obtained through DACA to find these individuals and remove them would not only be heartless, but would set a dangerous precedent. Even if Congress, sometime in the future, were to enact a legislative equivalent of DACA, what are the chances that undocumented immigrants would once again put their faith in a government database?

In an interview President Trump gave days after his inauguration, he said that he was looking at the DACA program with a "big heart." Seven months later, many are heartbroken about the loss of a program that has brought thousands of Americans a sense of belonging despite their lack of "papers." But as in so many cases under this still-young administration, the expansive cruelty of the executive branch may yet be tempered by the powers and wisdom of America's legal system.

June 27, 2017

Supreme Court Ends 2016 Term, Agrees to Hear Travel Ban Cases, Vacates and Remands Cross-Border Shooting Case, Punts in Two Immigration Cases

[Cross-posted from Immigration Prof.]

The Supreme Court's 2016 Term has come to an end.  Today, the last day of the Term, the Court in the biggest news agreed to review the travel ban decisions in the 2017 Term. In a per curiam order, the Court stayed the injunction in part.  Justice Thomas, joined by Justices Alito and Gorsuch, concurred in part and dissented in part.   He would have stayed the injunctions in full.   

In Hernandez v. Mesa, which involved a cross border shooting by U.S. immigration enforcement officer of a young Mexican national, the Court in a per curiam pinionr vacated and remanded the case to the court of appeals to consider whether the family could sue for violation of the Fourth Amendment under the Supreme Court's 1971 Bivens decision.  The order, which is analyzed here, observed that the case involved "a heartbreaking loss of life."  Justice Gorsuch did not participate in the case.

The Court ordered reargument in two immigration cases.  

In Jennings v. Rodriguez  (reviewing the legality of detention of immigrants without a bond hearing) and Sessions v. Dimaya (reviewing a Ninth Circuit decision, written by Judge Stephen Reinhardt, striking down a criminal removal provision as unconstitutionally vague), the Court will hear rearguments next fall.   The Court likely was split 4-4 in these cases  Justice Gorsuch will break the tie.

The Court earlier this Term decided four decisions touching on immigration:

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

2.  Esquivel-Quintana v. Sessions  (interpreting criminal removal provision).

3.  Maslenjak v.. United States  (denaturalization).

4.  Lee v. United States  (ineffective assistance of counsel claim based on erroneous advice on immigration consequences of guilty plea).

The Court agreed to review is seven immigration-related cases  in total in  the 2016 Term, which is a relatively large number. Two  (Maslenjak and Santana-Morales) touched on citizenship and denaturalization.  Five (Jennings, Dimaya, Esquivel-Quintana, Lee v. U.S.. Hernandez v. Mesa) involved immigration enforcement, which should not be surprising in light of the Obama administration's immigration enforcement push.  Increased immigration enforcement under President Trump will likely lead to a steady stream of immigration cases to the Supreme Court.

June 27, 2017

No decision in two immigration-enforcement cases

[Cross-posted from SCOTUSblog.]

President Donald Trump has made immigration enforcement a top priority. Two immigration-enforcement cases looked likely to have a big impact on the Trump administration’s plans. Both were argued before the confirmation of Justice Neil Gorsuch. Today, the Supreme Court, apparently deadlocked, ordered reargument of the cases.

One of the cases, Jennings v. Rodriguez, involved immigration detention. Detained immigrants ordinarily have been eligible to post bond and be allowed release from custody. In a January 25, 2017, executive order, among numerous immigration-enforcement initiatives, Trump announced an end to the “catch and release” of immigrants facing removal from the United States. Detention without bond thus became official immigration-enforcement policy.

Generally speaking, criminal and civil detention of U.S. citizens is subject to basic constitutional safeguards. Such a rights-based system, however, fits uncomfortably into the much more limited constitutional protections historically offered to noncitizens. Reflecting this tension, the Supreme Court’s immigration-detention decisions are not altogether consistent.

In a class-action challenge to immigrant detention, Jennings v. Rodriguez raised the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing. The U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction requiring bond hearings every six months for immigrant detainees.

Indefinite detention without a hearing and possible release is difficult to justify as a matter of constitutional law. At the same time, however, some justices at oral argument expressed concern that the 9th Circuit had acted more like a legislature than a court in mandating a bond hearing every six months. In the end, the court apparently needed a tiebreaking vote and will address immigration detention next term.

Another case that the court did not decide involved criminal removal. In the last few years, the Supreme Court has decided a steady number of criminal-removal cases. In light of the Trump administration’s stated emphasis on the removal of “criminal aliens,” we will likely see more criminal removal cases in the future. Most of the removal cases that have recently come before the court, including Esquivel-Quintana v. Sessions decided earlier this term, have raised ordinary issues of statutory interpretation and administrative deference.

Sessions v. Dimaya instead was a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been largely immune from judicial review. The court appears to be moving toward applying ordinary constitutional norms to the immigration laws. Earlier this term, for example, the court in Sessions v. Santana-Morales held that gender distinctions favoring women over men in the derivative-citizenship provisions of the immigration laws violated the Constitution’s equal protection guarantee.

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

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

The application of the void-for-vagueness doctrine to the immigration laws apparently divided the court. At oral argument, the justices seemed to agree that the court should review immigration-removal provisions under the standard due process test for vagueness. However, they appeared to be divided as to whether the case at hand was distinguishable from Johnson and thus whether Section 16(b) is unconstitutionally vague.

For the last decade, immigration cases have been a bread-and-butter part of the Supreme Court’s docket. The Supreme Court has slowly but surely moved immigration law toward the constitutional mainstream. We will have to wait until the next term to see if the court continues that trend with respect to immigrant detention and criminal removal.

June 12, 2017

Ninth Circuit Joins the Fourth Circuit in Rejecting Trump's Revised Travel Ban

[Cross-posted from Immigration Prof.]

By Kevin R. Johnson

It is a big immigration news day!

Agreeing with the Fourth Circuit, the Ninth Circuit today in a per curiam opinion (Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez) joined the Fourth Circuit and delivered the Trump administration's revised travel ban another setback.  Here is the introduction (and conclusion):

We are asked to delineate the statutory and constitutional limits to the President’s power to control immigration in t his appeal o f the district court’s order preliminarily enjoining two sections of Executive Order 13780 (“EO2” or “the Order”) , “Protecting the Nation From Foreign Terrorist Entry Into the United States. ” The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens , and to take actions to protect the American public. But immigration, even for the President, is not a one - person show. The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States. ” Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order preliminarily enjoining Sections 2 and 6 of the Executive Order.

The court rested its conclusion on statutory grounds -- that the requirements of Immigration and Nationality Act § 212(f), 8 U.S.C. § 1182(f) had not been satisfied -- and did not reach the Establishment Clause holding of the district court.  At the outset, it found that standing was established and that the case was "ripe" for review. 

The court emphatically rejected the notion that the travel ban was not subject to judicial review:  "Whatever deference we accord to the President's immigration and national security judgments does not preclude us from reviewing the policy at all. [citations omitted] . . . . We do not abdicated the judicial role, and we affirm our obligation `to say what the law is' in this case.  Marbury v. Madison, 5 U.S. 137, 177 (1803)." (Slip opinion, p. 32).  The court stated that "[i]n conclusion, the Order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality."  Slip op., p. 43.

The court summarizes its order in this concluding paragraph:

We affirm in part and vacate in part the district court’s preliminary injunction order. As to the remaining Defendants, we affirm the injunction as to Section 2(c), suspending entry of nationals from the six designated countries for 90 days; Section 6(a), suspending [the U.S. Refugee Program] for 120 days; and Section 6(b), capping the entry of refugees to 50,000 in the fiscal year 2017. We vacate the portions of the injunction that prevent the Government from conducting internal reviews, as otherwise directed in Sections 2 and 6, and the injunction to the extent that it runs against the President. We remand the case to the district court with instructions to re-issue a preliminary injunction consistent with this opinion. (footnote omitted).

June 12, 2017

Breaking News: Supreme Court Holds that the Constitution Applies to Gender Distinctions in Derivative Citizenship Laws

[Cross-posted from Immigration Prof.]

By Kevin R. Johnson

This morning, the Supreme Court decided Sessions v. Morales-Santana and held that the Constitution applies to gender distinctions in the derivative citizenship laws.  Justice Ginsburg, joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, wrote the opinion for the Court.  Justice Thomas, joined by Justice Alito, concurred in the judgment in part.  Justice Gorsuch took no part in the consideration or decision in the case.

The issues in the case were:  1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.

The U.S. Court of Appeals for the Second Circuit ruled that the laws governing citizenship for the children of unmarried parents violated the father’s constitutional right to be treated the same as a U.S.-citizen mother. (The statute was amended in 1986 to reduce the number of years that a father must have lived in the United States, but it continues to apply different standards for men and women.) The court of appeals declared Morales-Santana a U.S. citizen.

In previous cases raising similar issues, a majority of the justices had not been in agreement. 

Justice Ginsburg noted that the statutory provisions in question "date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are."  (citations omitted).   Gender distinctions now are subject to heightened scrutiny under the Equal Protection Clause.  "Prescribing one rule for mothers, another for fathers, § 1409 is of the same genre as the classifications we [have] declared unconstitutional . . . ." In the majority's view, the gender distinctions are "stunningly anachronistic" and violate the Equal Protection guarantee.

The majority, however, declined to rewrite the statute.  That is within the purview of Congress.  In the interim, the Court agreed with the U.S., government and ruled that a five-year requirement under another subsection of the statute should apply prospectively to children born to unwed U.S.-citizen mothers.

Justice Thomas, concurring in part in the judgment, would not decide the constitutional issues but would simply find that the Court could not provide the relief sought by Morales-Santana.

Immigration law has been exceptional in its immunity from judicial review.  Sessions v. Morales-Santana is another step down the road toward applying ordinary constitutional norms to the immigration and nationality laws. Six justices agreed that the Equal Protection Clause applied to gender distinctions in the derivative citizenship laws.  We shall see whether the decision marks the beginning of a trend in this Term's immigration decisions -- several that raise constitutional questions.

May 31, 2017

Opinion analysis: Justices continue to apply ordinary modes of statutory interpretation to the U.S. immigration laws

(Cross-posted from SCOTUSblog.)

By Kevin R. Johnson

With the new Trump administration, immigration has been in the national news. President Donald Trump and Attorney General Jeff Sessions have emphasized that the U.S. government will target "criminal aliens" in its removals. At various times, Trump has focused on crimes committed by Mexican immigrants. In the first of a number of immigration decisions from the 2016 term, the Supreme Court today decided its first crime-based removal decision in the new administration, Esquivel-Quintana v. Sessions. The case involved an immigrant from Mexico convicted of what could be viewed as a "sex crime." The decision in favor of the lawful permanent resident - written by Justice Clarence Thomas for a unanimous court (minus Justice Neil Gorsuch, who did not participate) - might be surprising to some observers.

The facts of the case are relatively simple. When Juan Esquivel-Quintana, a lawful permanent resident from Mexico, was 20 years old, he was convicted under California law for having consensual sex with his then-16-year-old girlfriend. An "aggravated felony" conviction generally requires mandatory removal of an immigrant from the United States and renders the immigrant ineligible for most forms of relief from removal. Section 1101(a)(43) of the Immigration and Nationality Act defines an "aggravated felony" to include the "sexual abuse of a minor." Claiming that Esquivel-Quintana's conviction constituted an "aggravated felony," the U.S. government initiated removal proceedings against him, and the immigration court ordered him removed from the United States. The Board of Immigration Appeals dismissed his appeal from the removal order. Applying the Supreme Court's seminal 1984 decision in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the U.S. Court of Appeals for the 6th Circuit deferred to the BIA's interpretation of "sexual abuse of a minor" and upheld the removal order. The dissent would have applied the rule of lenity, a judicial doctrine under which ambiguities in criminal law are resolved in favor of the defendant, to the interpretation of the criminal-removal provision in the immigration law and would have found that Esquivel-Quintana's conviction was not an aggravated felony.

As described by Thomas, the question before the court was "whether a conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old qualifies as sexual abuse of a minor under the INA." The court's answer was brief and straightforward: "We hold that it does not."

The court first reiterated the standard test for determining whether an immigrant's "conviction qualifies as an aggravated felony," as set forth in several recent cases:"[W]e 'employ a categorical approach by looking to the statute ... of conviction, rather than to the specific facts underlying the crime.'" Under the categorical approach, "we ask whether the state statute defining the crime of conviction categorically fits within the 'generic' federal definition of a corresponding aggravated felony." In other words, "we presume that the state conviction "rested upon ... the least of th[e] acts" criminalized by the statute, and then we determine whether that conduct would fall within the federal definition of the crime." Under that approach, Esquivel-Quintana's state conviction is "an 'aggravated felony' under the INA only if the least of the acts criminalized by the state statute falls within the generic federal definition of sexual abuse of a minor."

That was not the case here, the court concluded. After examining Section 1101(a)(43)(A) of the INA, Thomas observed that the statute's requirement that the sexual abuse be "of a minor" means that "the statute of conviction must prohibit certain sexual acts based at least in part on the age of the victim." The court pointed to statutory rape laws as a prime example of "this category of crimes," and relied on "reliable dictionaries" to define the "'generic'" age of consent in those laws as 16. The court rejected the "everyday understanding of 'sexual abuse of a minor'" offered by the government, which would have included activity involving victims up to the age of 18, pointing out that "the Government's definition turns the categorical approach on its head" by conditioning the crime on the particular laws of each state."

Moving to a consideration of the INA provisions surrounding Section 1101(a)(43)(A), the court emphasized that the statute's definition of "aggravated felony" includes murder and rape, and that the "structure of the INA therefore suggests that the sexual abuse of a minor encompasses only especially egregious felonies." According to the court, related federal statutes as well as state criminal codes also support the conclusion that "for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16." "Because the California statute at issue in this case does not categorically fall within that definition, a conviction pursuant to it is not an aggravated felony under §1101(a)(43)(A)."

By resolving the case on statutory grounds, the court avoided the more far-reaching questions raised by the majority and dissent in the court below. Thomas stated: "We have no need to resolve whether the rule of lenity or Chevron receives priority in this case because the statute, read in context, unambiguously forecloses the Board's interpretation. Therefore, neither the rule of lenity nor Chevron applies." A decision on either of those grounds would have had more far-reaching implications for immigration law than strict reliance on the interpretation of the statutory phrase "sexual abuse of a minor."

Esquivel-Quintana v. Sessions fits in neatly with the court's recent immigration decisions, such as Mellouli v. Lynch in 2015 and Moncrieffe v. Holder in 2013, which also applied ordinary modes of statutory interpretation to the immigration laws. In a series of crime-based removal decisions, the court has engaged in close parsing of the language of the statutory provisions in question. This approach is no different than that employed by the court in other cases. Although not breaking new ground today, the court continues to move forward in applying ordinary analytical approaches to immigration law, which historically had been in certain respects "exceptional" in the amount of deference given to the Board of Immigration Appeals. Immigrants have prevailed more often than not in the court's recent decisions as the U.S. government has pressed cases, like Esquivel-Quintana, which the court found to be unsupported by the immigration statute.