• 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.

  • March 20, 2017
    Guest Post

    by Heidi Kitrosser, Professor of Law, University of Minnesota Law School

    Last month, a panel of the U.S. Court of Appeals for the Ninth Circuit denied the Trump administration’s request to stay a federal district court judge’s temporary injunction against the first version of President Trump’s travel order. Some critics of the Ninth Circuit’s opinion have argued, among other things, that the panel should not have considered Donald Trump’s statements as evidence that the order purposefully discriminated against Muslims. These critics suggest that presidential campaign speech categorically ought not to be included among the evidence to which courts look to determine whether a law was passed for discriminatory reasons.

    This past Friday, Judge Kozinski – in an opinion joined by four of his fellow Ninth Circuit judges, dissenting from the Ninth Circuit’s refusal to vacate the panel opinion on the First Travel Order – joined these critics. Judge Kozinski characterized the panel’s use of Trump’s own statements as an “evidentiary snark hunt.” This approach, he warned, will reward lawyers for sifting through a candidate’s “often contradictory or inflammatory” statements, “when in truth the poor schlub’s only intention is to get elected.”  Worse still, it “will chill campaign speech,” as candidates censor themselves for fear of uttering statements that will haunt them in court one day.

    The concerns voiced by Judge Kozinski and other critics are misplaced. As both the Ninth Circuit panel and the federal trial court that first ruled on the case recognized, it is well established that courts may – indeed, often must – look beyond the face of a law to determine whether it is motivated partly by a discriminatory purpose. A contrary rule would create gaping loopholes in constitutional and statutory bars against religious or other forms of discrimination. To be sure, judicial inquiries into alleged discriminatory purposes are highly context-sensitive. A stray bigoted statement by a legislator or executive is unlikely to persuade a court that a measure is discriminatory in the face of ample evidence that it was directed toward, and serves a legitimate, non-discriminatory interest. On the other hand, a long history of public statements promising to take a particular action against a given group may well convince a court that the promised action, once taken, does purposefully discriminate against that group. At minimum, that history is relevant to the judicial inquiry, even if the court ultimately deems it outweighed by countervailing evidentiary factors. Were courts not free to so much as consider such history, the judicial power regarding anti-discrimination laws would be dramatically curtailed.

  • March 6, 2017
    Guest Post

    by Thomas Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of the Boston Police Department

    Much has been written in this forum of police misconduct, abuse, discrimination and violence (and I have certainly made contributions here). But much of what I have seen of the police and their resistance to a role in the enforcement of federal immigration laws is heartening and cause for a glimmer of optimism in what is otherwise, with the “shackles off” of Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) agents, descending into chaos, fear, danger and peril for residents of immigrant communities across the United States. Police chiefs and sheriffs from sixty-three agencies who are members of the Law Enforcement Immigration Task Force recently sent a letter to the U.S. Senate in which they disavow support for the involvement of local and county police and sheriff’s agencies in the enforcement of civil immigration laws. In the letter, the chiefs and sheriffs emphasize their role in “preserving the safety of our communities and upholding the rule of law” and that their participation in the enforcement of non-criminal immigration laws would “harm locally based, community-oriented policing.” And so it would.

    The backlash against the deputizing of local law enforcement under the nefarious ICE 287(g) program continues to position ICE’s draconian detention and removal policy against the local law enforcement mandate to ensure the safety of all community residents, regardless of their immigration status. According to the New York Times, Mayor Bill di Blasio refuses to turn the NYPD into a deportation force because residents will become fearful of the police and be reluctant to report crimes or to cooperate in criminal investigations, to the detriment of community safety. “If so many of our fellow New Yorkers who are undocumented feared to communicate with the local authorities because they thought they might be deported, we couldn’t run our city,” he said.

  • March 2, 2017
    Guest Post

    by Catherine Y. Kim, Associate Professor of Law, University of North Carolina School of Law

    Last week DHS issued new guidelines implementing President Trump’s Executive Order on Border Security, announcing a policy of mandatory detention for noncitizens apprehended at the border.

    When a noncitizen arriving at the border is charged with removability, Section 212(d)(5) of the Immigration and Nationality Act grants immigration officials discretion to release her on parole pending the outcome of removal proceedings. For decades, officials considered factors such as the individual’s age, health, family ties in the United States and the hardship that detention would cause, in determining whether detention was warranted. Last year, DHS reported detaining only 352,882 of the 805,071 noncitizens placed in removal proceedings last year.       

    Under the new guidelines, discretionary grants of parole are prohibited unless the Deputy Director of ICE or the Deputy Commissioner of CBP provides written authorization for the individual’s release; individuals who demonstrate a credible fear of persecution for asylum purposes remain eligible for discretionary parole without such written authorization. The guidelines explicitly preclude grants of parole on a categorical basis, for example, to all children, or pregnant women, or individuals over the age of 80. Moreover, they appear to preclude consideration of alternatives to detention, such as electronic monitoring.     

    Last year, DHS apprehended 690,637 noncitizens at or between ports of entry. This figure includes 415,816 individuals, including 59,757 unaccompanied children and 77,857 family units, apprehended by U.S. Border Patrol, plus an additional 274,821 individuals denied entry by U.S. Customs and Border Protection’s Office of Field Operations. Some of these individuals arriving through the southern border may be repatriated immediately to Mexico without a hearing, assuming the Mexican government agrees to accept them. Some will be able to establish a credible fear of persecution and thus become eligible for discretionary parole. Under the new guidelines, however, virtually all other noncitizens apprehended will be detained.

  • February 22, 2017
    Guest Post

    This piece originally appeared on The Guardian

    by Joshua Matz, Associate at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

    It is not every day that a federal court cites Ex parte Endo, the 1944 Supreme Court decision which invalidated the detention of loyal, law-abiding Japanese-Americans during the Second World War. But these are not ordinary times.

    Shortly after taking office, President Donald J. Trump unleashed pandemonium by suddenly announcing a temporary ban on travel into the United States from seven Muslim-majority nations, in addition to a temporary ban on all refugees. Experts cried foul, warning that Trump’s order violated the constitution and made America less safe.

    Amid vigils and protests, federal courts issued a flurry of rulings against Trump’s order. The broadest ruling was issued by Judge James Robart, who Trump promptly denounced on Twitter.

    On Feb. 7, the U.S. Court of Appeals for the Ninth Circuit heard oral argument on an emergency motion to overturn Judge Robart. More than 130,000 people live-streamed the hearing.

    The Department of Justice represented Trump in the court of appeals and took several astonishing positions. Most remarkably, it warned that “judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.”

    Trump (through his tweets) and his lawyers (in their briefs) thus argued not only that Trump should win on appeal, but that judges would cause grave harm merely by questioning his order.