Immigration

  • January 9, 2015
    Guest Post

    by Sejal Zota, Staff Attorney, National Immigration Project of the National Lawyers Guild

    Moones Mellouli is a native of Tunisia, but a lawful permanent resident of the United States, engaged to marry a U.S. citizen. The federal government is trying to deport Mellouli for his Kansas conviction for possessing a sock – yes a sock! – deemed drug paraphernalia when used to conceal or store drugs. ACS thrives on its law-student participation, so let’s build a hypothetical with socks to illustrate this important Supreme Court argument. When a DOJ attorney steps to the podium at the Court on Jan. 14 to defend this deportation order, imagine for a moment his credibility if he walked up wearing two different colored socks; say a pink argyle and a green striped one.

    But these socks would likely be hidden by the podium -- so imagine, instead, that he walked in on his hands to parade his mismatched stockings before the justices. Far-fetched perhaps, but the eyebrows this would raise should match the justices’ reaction to the government’s mismatched administrative interpretations of the single statute at issue here, Section 1227(a)(2)(B)(i) of the Immigration and Nationality Act.   

    First things first, this statute itself in no way calls for Mellouli’s deportation. It specifically calls for the removal of “any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21).” But the record of Mellouli’s conviction does not disclose anything about the drug he had socked away.  Kansas law bans plenty of substances -- a list far broader than those defined in section 802 of title 21. For example, salvia is on the Kansas list, a type of mint plant, which Miley Cyrus (another adventurous dresser) recently made news smoking.

    The Board of Immigration Appeals (BIA) is the administrative agency responsible for interpretation of this and other immigration statutes. Courts typically give administrative agencies a fair amount of leeway to interpret statutes. This principle is known as Chevron deference.  But this deference is not free for the taking. Federal courts don’t give it when the agency interpretation bears little relation to the statute, and they throw deference completely to the side when the agency starts offering inconsistent interpretations of a single statute. The government is asking for Chevron deference in this case, but suffers from both of these problems.

    The plain language of the federal statute requires the state paraphernalia conviction be directly and necessarily tied to a controlled substance under federal law. Keeping paraphernalia used with salvia and other Kansas-forbidden drugs may be criminal in Kansas, but these drugs are not on the federal list of controlled substances. There is no necessary federal tie Mellouli’s Kansas crime, and no basis for interpreting the statute otherwise. 

  • December 4, 2014
    Guest Post

    by Neil Kinkopf, Professor of Law, Georgia State University. He also serves on the Georgia Lawyer Chapter Board of Advisors.

    The predictable calls for impeachment went up after President Obama announced his actions on immigration last week. To the surprise of no one, the calls issued exclusively from the president’s Republican detractors. Such partisan calls for impeachment are easily dismissed. In a recent New York Times op-ed, however, Professor Peter Schuck of the Yale Law School lent credibility to the legal basis for these claims, arguing that the president’s action satisfies the constitutional predicate for impeachment (though he advocates that Congress exercise its discretion to decline impeachment).  His argument is worthy of attention, though it fails utterly. 

    The Constitution sets forth the grounds for impeachment:  “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  Nowhere in the document, however, is the phrase “other high Crimes and Misdemeanors” defined. This absence of a legal definition has led some to conclude that the House of Representatives may impeach for any reason at all. Then-Congressman Gerald Ford gave this idea its most famous articulation:  “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history ….”  Professor Schuck falls squarely in this camp, declaring “it is pretty much up to Congress to define and apply ‘high crimes and misdemeanors.’” 

    This Nietzschean view (Law is dead, therefore all is permitted) is deeply flawed. Most significantly, it is at odds with the original understanding of the impeachment power. The framers adopted the language “high crimes and misdemeanors” precisely to avoid leaving it “pretty much up to Congress” to decide for itself what constitutes an impeachable offense. During the drafting convention, George Mason suggested that the president be impeachable for “maladministration.” James Madison objected to this formulation on the grounds that it would undermine the independence of the president: “[s]o vague a term will be equivalent to a tenure during pleasure of the Senate.” The constitutional convention then settled on the familiar “high crimes and misdemeanors” language as a way of making sure the standard for impeachment would not be infinitely malleable. 

  • November 25, 2014

    by Caroline Cox

    Krishnadev Calamur of NPR reports on the aftermath of the Ferguson Grand Jury’s decision not to indict Officer Darren Wilson. Kimberly Kindy of The Washington Post discusses how juries tend to give police the benefit of the doubt in such cases.

    In The New York Times, Adam Liptak considers whether there is a numerical tipping point at which the Court will feel prepared to invalidate state laws and what it could mean for the marriage equality fight.

    In Slate, Mark Joseph Stern writes about how a Supreme Court ruling that allowed religious holiday displays has meant that the government must also support the Satanic Temple and other controversial religious groups.

    E.J. Dionne Jr. of The Washington Post examines President Obama’s immigration announcement and what it says about the plans of the president’s political opponents.

    In The New Yorker, Jill Lepore writes about the theft of Justice Felix Frankfurter’s papers from the Library of Congress and the challenges to investigating the history of the Court.

  • November 21, 2014
    Guest Post

    by Erwin Chemerinsky and Samuel Kleiner. Chemerinsky is Dean of the University of California, Irvine School of Law; Kleiner is a fellow at the Yale Law Information Society Project.

    In the face of an ongoing humanitarian crisis as families are broken up by deportations, President Obama’s bold executive action is legally permissible and morally necessary. The angry Republican rhetoric is misguided both as a matter of constitutional law and as a matter of desirable social policy.

    In terms of the Constitution, President Obama drew a careful distinction based on what he can and can't do without congressional action. The President cannot bestow citizenship on individuals except as authorized by law. President Obama’s executive order does not attempt to do this. 

    But what a president may do is set enforcement priorities, choosing who to prosecute or who to deport. No government brings prosecutions against all who violate the law. Resources make that impossible and there are laws on the books that should not be enforced. Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States.   For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses to focus deportations along certain criteria.

    In fact, as recently as two years ago, the Supreme Court in United States v. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the President to choose whether or not to bring deportation proceedings. On numerous other occasions, the Supreme Court and lower federal courts have recognized prosecutorial discretion to decide when to bring criminal prosecutions or immigration enforcement actions.

    The overblown Republican rhetoric fails to recognize that what President Obama announced was enforcement priorities. He has instructed the executive branch, which is under his control, to prioritize deportation proceedings against felons and those who pose a public danger, but not to deport parents of young children who are United States citizens and who present no threat.   Such discretion is clearly and unquestionably part of the president’s power.     

    Nor is there any realistic chance that any court will find otherwise. No one is likely to have standing to challenge President Obama’s policy. And even if a court were to address the issue, the law is well established that presidents have discretion to decide whether to prosecute or bring deportation actions. Contrary to the Republican rhetoric, President Obama is violating no law and is acting within his constitutional authority.

  • November 21, 2014

    by Caroline Cox

    At Hamilton and Griffin on Rights, Thomas B. McAffee explains how religious freedom arguments about marriage equality miss the mark.

    Katie McDonough of Salon discusses how, in light of the growing number of states introducing abortion restrictions, women have begun sharing their abortion stories.

    Peter Beinart looks at President Barack Obama’s immigration announcement in The Atlantic, asserting that the executive order helps fulfill his promise to progressives.

    In the Huffington Post, Fred Wertheimer argues that Citizens United will go down in history as one of the worst Supreme Court decisions.