Immigration

  • July 14, 2017
    Guest Post

     

    by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Law Professor at Penn State Law and founding director, Center for Immigrants’ Rights Clinic.

    A travel ban was signed by the president in the form of an Executive Order on March 6, 2017. The most controversial provisions of the ban include a 90-day travel restriction for nationals from six countries with Muslim populations of more than 90 percent: Iran, Libya, Somalia, Sudan, Syria and Yemen as well as a suspension of the refugee admissions program for a period of 120 days. The ban was successfully challenged in the courts on both constitutional and statutory grounds. 

    On June 26, the Supreme Court of the United States issued a significant decision on the travel ban, agreeing to hear the case in the October 2017 term and also allowing part of the ban to go into effect. The formula offered was as follows: any national from the six countries impacted by the ban or refugee who lacks a credible “bona fide relationship to a person or entity” is banned from the United States. Unsurprisingly, attorneys and affected communities were eager to understand how “bona fide relationship” would be defined and applied. While the Supreme Court offered a few examples of what might qualify as a bona fide relationship to a person or entity, the uncertainty about how this would be applied by the implementing agencies (in this case Department of Homeland Security and Department of State) is real.

    Hours before the ban was to go into effect at 8:00pm EST on June 29, the Departments of State and Homeland Security issued “guidance” which to say the least is controversial. Guidance from DHS offered the following question and answer regarding the definition of “bona fide relationship:”

  • May 22, 2017
    Guest Post

    *This piece originally appeared on the Law Professor Blogs Network

    by Geoffrey A. Hoffman, director of the Immigration Clinic at the University of Houston Law Center

    The anti-sanctuary cities and campuses bill, SB-4, was signed into law on May 7, 2017. Most importantly, state laws are subject to federal preemption especially where there is a pre-existing structure in place for providing enforcement of federal laws by state officials. In fact, such a statutory federal structure already exists. It is Section 287(g) of the Immigration and Nationality Act (INA), which provides the mechanism whereby state law enforcement can be deputized to act as federal law enforcement officials. In addition, there are other federal laws which may “occupy the field” which already govern information-sharing between state and federal officials. See 8 USC § 1373. The new law also makes it mandatory to comply with ICE “detainers” signed by ICE officials and not a judge or magistrate. The new litigation brought by the governor seeking a declaratory judgment will have to grapple with the many federal district court cases that already have made pronouncements about the unconstitutionality of such ICE detainers. Under certain cases state officials have been sued and plaintiffs have received monetary damages due to detainers’ improper use.

    First, consider INA 287(g). The section provides that localities may “voluntarily” enter into a memorandum of agreement (MOA) with the federal government. Then, the state or local entity receives delegated authority by the federal government to enforce the immigration laws within their jurisdictions. Part of 287(g) provides for training and oversight of the state officers so they can properly execute the federal immigration laws. Where is the oversight and training in SB-4? The SB-4 framework does not have any safeguards, such as any training by federal officials, among the other aspects of the federal-state partnership set out in the 287(g) framework. The SB-4 statute says state officers cannot be prohibited from asking about someone’s immigration status for one who is lawfully detained or arrested. It also specifically provides that state entities cannot have a policy which “prohibits or materially limits” the enforcement of immigration laws (by their own state officers).   

  • May 17, 2017
    Guest Post

    by Pratheepan GulasekaramProfessor of Law at Santa Clara University School of Law and Co-Author of “The New Immigration Federalism” (Cambridge Press)

    For the second time within the span of week, Trump’s immigration ban 2.0 headed to a federal appeals court. On Monday, the Ninth Circuit heard the government’s appeal from district court’s issuance of an injunction in Hawaii v. Trump. The three-judge panel vigorously questioned both Acting Solicitor General Jeffrey Wall and counsel for Hawaii, Neal Katyal. The argument showcased some of the best oral advocacy thus far on the immigration ban executive order (EO), and featured several marquis moments that are sure to garner extended commentary. The range of topics explored by the Ninth Circuit panel were similar to the other cases challenging the EO: The proper level of judicial review; whether any plaintiffs have standing, and if so, what aspects of the EO their standing allows them to contest; whether the district court’s injunction was proper in scope; and, of course, whether and to what extent a court should consider Trump’s campaign and post-election statements in evaluating religious animus.

    My goal here is not to comprehensively discuss all important questions covered in the oral argument, rehash the voluminous legal commentary already available about the EO, or to make predictions about the panel opinion. Here, I highlight three moments, among the many, that stood out to me as notable inflection points.  The first exchange concerns the issue of statutory analysis, the second with the limits of religious animus, and the third with the historical legacy of this ruling.

  • April 24, 2017
    Guest Post

    by Melissa L. Turcios, Associate, Wilkinson Barker, Knauer LLP

    A couple of weeks ago, President Trump signed an executive order throttling federal funding to nearly 400 jurisdictions across the United States, so-called “sanctuary cities,” that through various policy mechanisms do not require their local law enforcement to affirmatively assist in executing federal immigration laws. “Sanctuary city” is an unfortunate misnomer, evoking a place where “bad hombres” run rampant, protected from the long arm of Johnny Law. This misguided view, reflected even in the text of the order itself, has resounded through conservative media: that sanctuary policies tie the hands of local law enforcement, create unbreachable havens for criminal aliens and endanger innocent Americans.

    The truth, as it often is, is far more benign: nothing in sanctuary policies prevents federal enforcement actions. The federal government exercises exclusive jurisdiction over immigration enforcement, but state and local governments retain sovereign authority to assess local needs and priorities as part of their “police powers,” in order to provide for the health, safety, education and welfare of their communities. In order to ensure that already-limited local law enforcement resources are directed towards local crime prevention priorities, jurisdictions like the District of Columbia may, for example, refuse to hold undocumented immigrants in detention on the taxpayer dime past their scheduled release dates. “Being a sanctuary city means we are not an agent of the federal government,” D.C. Mayor Muriel Bowser explained, “It means that our police can focus on serving D.C. residents — protecting and serving them — no matter their immigration status.” To preempt federal efforts to commandeer local police into serving as an auxiliary deportation force, other jurisdictions prevent local police from even asking about the immigration status of residents. Such policies have broad support among law enforcement officials and do not prevent any police department from pursuing or arresting an undocumented immigrant who commits a crime. 

  • April 18, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: “The Future of the U.S. Constitution

    by Steve Vladeck, Professor of Law, University of Texas School of Law

    The so-called “entry fiction,” pursuant to which “arriving aliens” stopped at the border are treated, for at least some constitutional purposes, as if they are not actually on U.S. soil, has been a point of controversy in judicial doctrine and legal scholarship for generations—and remains so today. But the one point on which there has been common cause has been its inapplicability to individuals living in the United States—regardless of how they got here or their current immigration status. Indeed, the Supreme Court has so held in an unbroken line of cases stretching back to the 1880s, since a contrary reading would suggest that undocumented immigrants could be tried without due process; could be subjected to cruel and unusual punishment; and so on.

    Among other things, these decisions, from Yick Wo v. Hopkins to Wong Wing v. United States to Mathews v. Diaz to Plyler v. Doe, have provided important if implicit bulwarks against a true nativist turn in constitutional law. Even during periods of heightened anti-immigrant sentiment, they have generally prevented the political branches from singling out undocumented immigrants for anything other than deportation. And if undocumented immigrants cannot be singled out for especially restrictive measures, it follows a fortiori that those with lawful immigration status cannot be, either.

    But at the Supreme Court’s Conference earlier today, one of the appeals it was deciding whether to hear involves a direct assault on these precedents—and on the rights of undocumented immigrants living within the United States. Indeed, I fear it is no exaggeration to suggest that, if the justices leave the lower court’s ruling intact, it could open the door to a far more aggressive—and alarming—nativist turn in immigration enforcement on the home front.

    The dispute in Castro v. U.S. Dep’t of Homeland Security arises from the 1996 immigration reform laws, which created a new category of “expedited removal” for individuals stopped at the border without proper documents. To give teeth to the “expedited” part of expedited removal, Congress provided for very limited judicial review in such cases—review that, among other things, does not allow for the judicial consideration of asylum claims such as those pressed by many of those caught up in the 2014 Central American migrant crisis, including the petitioners in Castro. And although courts initially construed these restrictions narrowly to not preclude access to writs of habeas corpus, Congress in 2005 narrowed their habeas authority in such cases, as well.

    In Castro, 28 women (and their minor children) who made it into the United States before being arrested and placed in expedited removal proceedings argued that they were legally entitled to asylum (and, thus, to not being removed from the country). Because the 1996 immigration laws, as interpreted by the Justice Department and as amended in 2005, deprived them of the right to even press that claim in court, they argued that these laws violated the right to judicial review of their detention guaranteed by the Constitution’s Suspension Clause.