U.S. v. Texas: Takeaways From Oral Argument at #SCOTUS

I had the privilege of attending today’s oral argument in U.S. v. Texas.  Here are my initial takeaways:

What we saw today was the Republicans trying to litigate a political dispute at the Supreme Court. The Republican plaintiffs simply do not have an addressable legal claim.

As expected, Chief Justice Roberts peppered the Obama Administration with tough questions. However, given the Chief Justice’s rigorous views on standing and his lamentations about the growing perception of a politicized Court, U.S. v Texas is precisely the type of dispute that Chief Roberts seems to want settled in the political branches and not in the judiciary. In fact, the Chief Justice’s almost singular focus on standing today – in particular when he asked whether Texas’s alleged injury was more indirect and speculative than in the Massachusetts v EPA case – suggests that, true to his well-articulated past opinions, Roberts is seriously questioning Republicans’ ability to bring this case.

This case remains about Republicans’ policy disagreement with the president, not about the law.

On the merits, the Republican plaintiffs conceded that Obama had the authority to temporarily defer the removal of undocumented parents and Dreamers. As Justice Kagan pointed out, the Republican plaintiffs’ “gripe” is with letting undocumented people work, support their families and live in this country with dignity in the process.

This underscores the anti-immigrant motivation behind the case and reminds us that a political lawsuit should be settled at the ballot box, not the Supreme Court.

 

When Your Argument Is Wrong as a Matter of Law: The Texas Immigration Response

2016-03-29 SCOTUS

Image via Flickr (bufflehead)

Available in Spanish here.

The lawyers for 26 GOP Governors and Attorneys General, led by Texas Attorney General Ken Paxton, filed their response brief in the case challenging President Obama’s executive actions on immigration. Like everything else about this case, the brief is politically motivated and filled with confusion and obfuscation.  Quite frankly, and I don’t say this lightly, I believe that portions of the brief push the envelope on an attorney’s obligation of candor toward the tribunal.  

The Texas strategy appears to rely on the Justices of the Supreme Court not knowing or understanding the intricacies of Immigration law, which, admittedly, can be complicated and confusing. The crux of Texas’ argument depends on perpetuating that confusion — initially created by their District Court Judge of choice Andrew Hanen — about what the immigration law says and, specifically, between the concept of “lawful status” and “lawful presence.”  The former is a term of art that refers to formal immigrant, nonimmigrant (temporary visa classification) or parole status.  The latter is Hanen’s legally sloppy reference to undocumented noncitizens who are in a period of stay authorized by the Department of Homeland Security—whether or not they also have nonimmigrant, immigrant visa or parole classification.  

“Unlawful presence” refers to those undocumented noncitizens who are accruing time toward the 3/10 year bar to readmission—and not all undocumented noncitizens accrue “unlawful presence.”  For example, students and exchange visitors are admitted for duration of their study programs—not for a specific period of stay authorized by DHS.  If a student overstays his or her program she does not generally accrue unlawful presence toward the 3/10 year bar. To be sure, she is “out of status” and subject to deportation—but she is not accruing “unlawful presence” such that once she departs the U.S. she’ll be barred from returning for a 3 or 10 year period. These are more than legal technicalities.  In the complex world of immigration law lawful status has a precise legal meaning.  Lawful presence does not.

Importantly, as Professor Anil Kalhan has observed on two separate occasions, here and here, the concept of “lawful presence” does not exist as a legal concept in the sense that Hanen, the 5th Circuit, and now Texas use it.  Hanen, later followed by the 5th circuit, took the concept of unlawful presence—a legal term of art which specifically refers to noncitizens who entered the country illegally, overstayed their authorized period of stay, were found to be out of status or (in certain circumstances) worked without authorization —and proceeded—without any statutory authority whatsoever—to reason that noncitizens who had been accruing “unlawful presence” were rendered “lawfully present” by DAPA or DACA+.  Therefore, so Hanen reasoned, the President’s immigration executive actions unlawfully transformed an unlawfully present noncitizen into a noncitizen with lawful immigration status.  This was (and is) wrong as a matter of law.  

If, when reading through the Texas brief, or the lower court opinions, one substitutes “lawful status” for “lawful presence” Texas’ argument falls on its face because DAPA and DACA+ clearly state that the guidance creates no lawful status.  The strongest argument they have derives from various (unwise) political statements President Obama made about changing the law. For Texas, comments made by the President at press events now serve as valid legal sources – and their strongest argument.

Of course, there’s more. Some of this gets very technical, but, again, that’s apparently part of the GOP strategy. Texas perpetuates that Hanen-created confusion between lawful presence and lawful status to make several brazen misstatements which, frankly, I find appalling—especially in a brief filed in the Supreme Court of the United States. Here a few examples:

First, on page 5 of the Texas brief, they claim that on page 38 of its brief the Administration asserts “without any statutory citation, that an alien’s designation as ‘lawfully present’ is not a defense to removal…But defendants also assert [on page 9 footnote 3 of its brief] that an alien granted lawful presence is not ‘present in the U.S. without being admitted or paroled’…That directly negates the charge that an alien is removable as present ‘without being admitted or paroled.’  Lawful presence also appears to negate the charge that an alien is removable as ‘present in the US in violation of [federal law].'”  In fact, on page 9, footnote 3, the Administration’s brief asserts aliens granted Deferred Action “cease accruing unlawful presence for purposes of [the 3/10 year bar]…An alien is deemed ‘unlawfully present’ for this purpose if he is present ‘after the expiration of the period of stay authorized by [the Department of Homeland Security] or is present in the US without being admitted or paroled…DHS treats Deferred Action as a “period of stay authorized by the DHS” that tolls the accrual of [unlawful presence]”.

Contrary to the arguments made in the Texas brief, on page 5 of its brief the United States asserts “Deferred Action does not confer lawful immigration status or provide any defense to removal.  An alien with Deferred Action remains removable at any time, and DHS has absolute discretion to revoke deferred action, without notice or process.”

On page 41 of its brief Texas argues “Nor does it matter that DAPA can be ‘[revoked].’  An alien is still deemed lawfully present—and thus eligible for valuable benefits—until any revocation.  Visas too are revocable at any time in the Executive’s discretion.  But that Executive acts by issuing a visa, and the alien is lawfully present while holding one.” This is flat out obfuscation—and frankly, this is one of the statements that pushes the “candor to the tribunal” envelope.

First, to compare DAPA and a visa is beyond comparing apples and oranges.  DAPA has to do with a discretionary decision to temporarily forbear removal against a person who is in the U.S. without authorization under the civil immigration statute.  A visa is legally nothing more than permission to apply for admission to the U.S.—it is NOT, as the lawyers for Texas likely well know, authorization to be admitted or remain in the U.S.

Second, while the executive may revoke a nonimmigrant visa, that authority has little to do with lawful immigration status.  As stated, a visa generally gives a person permission to apply for admission to the U.S. in a specific immigrant or nonimmigrant visa classification e.g. employment- or family-based immigrant or visitor, worker, student status etc. It does NOT give anyone permission to be in the U.S.  So, a noncitizen with a 10 year visitor visa is typically admitted by U.S. Customs and Border Protection for a 6 month authorized period of stay.  If the noncitizen overstays the 6 month period his valid visa is rendered void by operation of law regardless of its 10 year validity and he begins to accrue “unlawful presence” toward the 3/10 year bar.

The bald assertion that an noncitizen is “lawfully present” while holding a visa is a flat out misstatement of law and fact.  Inexcusable in a SCOTUS brief.

Texas does not dispute that the Obama Administration’s enforcement priorities–including his authority to forbear removal of millions of undocumented noncitizens–are solidly legal. Nor can it. But it makes the argument throughout its brief that Texas will be harmed because DAPA recipients who otherwise would have left will cost the state money. On page 14 they argue, “DAPA will cause States to incur additional…costs.  The district court found, based on record evidence, that DAPA will cause aliens who otherwise would have left the country to remain and consume these costly services.” Either this is a an inappropriate political argument in favor of “self-deportation” or it’s flat out inconsistent with Texas’ concession that millions of undocumented immigrants will remain in the U.S. regardless of DAPA or DACA because of the Executive’s adherence to lawful enforcement priorities.

Texas argues that the law does not permit the DHS to grant employment authorization to deferred action recipients, other than in four specific categories authorized by statute–U visa applicants, family members of lawful permanent residents killed in the September 11 terrorist attacks, family members of U.S. citizens killed in combat and Violence Against Women Act (VAWA) applicants.  Here the Texas lawyers are trying to persuade SCOTUS to agree that “the 5th circuit correctly held that the Executive’s sweeping limitless conception of its power is beyond the scope of what the INA can reasonably be interpreted to authorize.”  In other words, they argue that the law does not permit the Administration to grant deferred action recipients employment authorization other than in the four specific enumerated situations.  Of course Texas conveniently ignores the statutory and regulatory provisions and historical practice making noncitizens granted deferred action eligible to apply for employment authorization based on a showing of economic need.  It was here that the 5th circuit went beyond what even Hanen did in his order blocking in DAPA and DACA expansion.  If allowed to stand, this portion of the misguided 5th circuit holding would upend deferred action as we know it.

Finally, and most surprising, the Texas argument for standing contains little, if anything, new. They must realize, given Chief Justice Roberts’ strong views on standing that this is probably  their biggest hurdle. But, to be honest, they don’t have much new to offer. They rely on the claim that Texas will be harmed through costs incurred by the issuance of driver’s licenses (as well as other costs incurred) as a result of deferred action.  However, on the question of whether states get special standing consideration Texas is clearly arguing to the justices on the Court who previously decided in favor of standing in Massachusetts v EPA.  The Texas lawyers incorrectly claim that to deny standing would require the Court to overrule Massachusetts, something courts—especially the Supreme Court—would be reluctant to do because of the hallowed tradition of stare decisis.  Also, Chief Justice Roberts authored the dissent in Massachusetts, in which he adhered to the Supreme Court’s traditionally rigorous standard for standing—an obvious problem for Texas in this case.  Fortunately, the Supreme Court can dispose of Texas’ standing argument, as did the Administration in its brief, because the Massachusetts case–which involved a very different set of circumstances–does not support Texas’ argument here.

Texas’ response brief makes it clear that the GOP’s case against DAPA and DACA+ depends on confusing the Justices about the intricacies of immigration law. That might have worked with Hanen and in the Fifth Circuit, but shouldn’t with the Supreme Court.  And, with gratuitous references to President Obama’s statements at press conferences, they underscored that their case is really a political dispute, which should be decided at the ballot box, not by the federal judiciary.

#Texas #immigration case is opportunity for #SCOTUS to show it’s not tainted by partisan politics

SCOTUS

Posted on The Hill Congress Blog by David Leopold

Earlier this month Chief Justice John G. Roberts Jr. lamented that “partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees.” Roberts was referring to the very real danger of institutional mistrust—the widespread belief among the American public that the Court is no longer an impartial judicial body focused on impartial interpretation of the Constitution, but that its decisions are increasingly aimed at moving a partisan agenda.

Robert’s concern is well founded. The political pressure on the justices—particularly from the right—is perhaps more intense than at any time in the nation’s history.

Republican reaction to the sudden death of Justice Antonin Scalia last week has only fed this perception. Senate Republican Leader Mitch McConnell (R-Ky.)didn’t even have the decency to wait until Scalia’s body was flown back to Washington before he declared—despite the clear language of the Constitution–that President Obama should not be permitted to appoint Scalia’s replacement. McConnell’s intent to obstruct the confirmation process disrespects the legacy of Scalia himself who would have unquestionably upheld the president’sconstitutional authority to name his successor—an irony obviously lost upon McConnell and the other GOP senators who dutifully fell in line behind their leader.

Yet despite the politically charged atmosphere left in the wake of Scalia’s passing, the eight justices of the Supreme Court—and Chief Justice Roberts in particular—are presented with a critical opportunity to dispel the impression the Court has been corrupted by politics—something Linda Greenhouse noted Roberts had a hand in creating; that it is indeed the dispassionate umpire of “balls and strikes” Roberts described in his 2005 confirmation hearing. And, as the Court moves on to tackle a docket laden with cases ranging from abortion to worker’s rights to affirmative action, no case presents the justices with a greater opening to eschew the intrusion of politics into the courtroom as U.S. v. Texas, the challenge to Obama’s executive actions on deportations.

Here’s why:

The lawsuit is unquestionably a brazen political attack on the president’s November 20, 2014 deportation deferral known as DAPA and DACA expansion. Before the ink was even dry on the deferred action guidance, Republicans in Congress tried repeatedly to block the President’s actions – and they failed repeatedly. Taking another route, the state of Texas, joined by mostly GOP governors and attorneys general from 25 states, shopped for a friendly judicial forum in which to launch a legal assault. And they found one in the Brownsville, Texas, courtroom of U.S. District Judge Andrew Hanen, who’d made a name for himself in other cases excoriating the Obama administration for what he described as its “failure to enforce current United States law.” The GOP politicians took page from the playbook of birther queen Orly Taitz who identified Hanen as anti-immigrant and filed a lawsuit in Hanen’s court to stop the federal government from bussing immigrant minors from Texas to temporary detention centers outside the state. As predicted, Hanen blocked DAPA and DACA expansion and was later affirmed by the Fifth circuit, the most conservative appeals court in the country.

The Supreme Court agreed to hear the case in January and until Scalia’s death many court observers speculated that the key to upholding the president’s executive actions was Justice Anthony Kennedy, who has been a key swing vote in several immigration cases and wrote the majority opinion in Arizona vs. U.S. which recognized the president’s broad discretion over deportation matters, including deferred action.

Since Scalia’s passing the media has been ripe with speculation that the eight justice Supreme Court will divide equally along ideological lines and deadlock 4-4 with Justices Ginsburg, Breyer, Sotomayor and Kagan voting to uphold the President’s executive actions and Justices Roberts, Kennedy, Alito and Thomas voting to strike them down. A tie vote would not set a national precedent but would return the case to Hanen’s court. No doubt cases would be brought by advocates – and even states – to end the injunction in other states that welcome the president’s deportation deferrals. That’s the kind of judicial chaos that Roberts seems to want to avoid.

Fortunately, all this is rank speculation. It’s impossible to know what the Supreme Court—or any individual justice—will do in any case. The more important question is whether the justices will take the opportunity to demonstrate to the nation that they will not allow the judiciary to be used as a forum for partisan political attacks. If they do, there is no doubt that a healthy majority of the court will vote to dismiss the lawsuit, lift the injunction and make clear to the nation that political disputes are to be decided at the ballot box, not in the Supreme Court of the United States.

Leopold, an immigration attorney, serves as counsel to immigration reform groups and is the former president of the American Immigration Lawyers Association

Two Key Takeaways from Yesterday’s Announcement by The Supreme Court

There are two big takeaways from yesterday’s announcement by the Supreme Court that it will review the President’s immigration executive actions–DAPA and DACA.

First, it’s good news for proponents and bad news for opponents.  It’s a huge win for 5 million parents of U.S. citizens and legal residents across the nation who will finally get their day in court after nearly a year of waiting.  It’s also a huge loss to Texas and the other GOP led states who sued in late 2014 to block Mr. Obama’s DAPA and DACA expansion from being implemented.  Make no mistake, despite what they may be spinning now, restrictionist opponents of DAPA and DACA expansion fought tooth and nail to keep the U.S. Supreme Court from taking it up, including filing a 40 page legal brief imploring the Justices to not hear it.

Second, it’s very good news that the Supreme Court has asked the parties to argue whether the executive actions violate the “Take Care” clause of the Constitution.  Judge Hanen’s decision blocking the DAPA and DACA was based on narrow procedural grounds–he did not rule on Texas’ claim that the President’s executive actions, which offer a temporary deportation reprieve to an estimated 5 million immigrants, violates his constitutional obligation to “take care that the laws be faithfully executed”.   If the Court ruled only on the narrow procedural grounds, the case would go back to Judge Hanen, a hand-picked judge whose determination to thwart immigrants and President Obama is well-established.  That the Court wants argument on the “Take Care” Clause signals that the Justices are intent on resolving the GOP lawsuit fully and completely.

That’s a good sign not only for immigrants, but for the entire country.

ICE raids are repugnant

Houston Chronicle

Published in the Houston Chronicle by David Leopold (A version of this commentary first appeared on CNN.com)

The Obama administration rang in the New Year with a series of heavy-handed immigration raids aimed at ferreting out and deporting Central American families who entered the United States after fleeing rampant violence in their home countries. According to Department of Homeland Security Secretary Jeh Johnson, the focus of the Immigration and Customs Enforcement operation is families ordered deported by an immigration judge either because their asylum claims were denied or they didn’t appear for their immigration court hearings. The raids have caused widespread shock, fear and panic among immigrant communities in Texas and elsewhere.

The raids operation is shocking, outrageous and just plain wrong. This is something we would expect from a President Trump, not President Obama.

The president is reacting – actually overreacting – to a recent spike in the migration of Central American families and unaccompanied children to the United States. He apparently wants to deter others from making the arduous, life-threatening trip north to the United States and to show that his administration is adhering to its Nov. 14, 2014, immigration enforcement priorities that, in addition to criminals and national security threats, target noncitizens who entered the U.S. or were ordered deported after Jan. 1, 2014.

But it’s morally repugnant to send ICE agents into local communities to arrest and detain vulnerable families, including women and children, and deport them to places where their lives will be threatened by unspeakable violence – countries like El Salvador, Guatemala and Honduras, where gang and drug violence force innocent families to flee north to the United States in search of a haven.

We know that most are eligible for asylum or other forms of protection because U.S. Citizenship and Immigration Services data show that an overwhelming percentage of the mothers and children in family detention centers in the United States can show a reasonable fear of persecution in their home countries.

Other Central Americans ordered deported in absentia may not have had a fair chance to plead their asylum case because they did not get adequate information from government bureaucrats explaining their obligation to go to court. Clearly, being ordered deported under those circumstances is not due process.

And this is exactly what the CARA Project – which provides pro bono legal assistance to families held at ICE detention centers in South Texas – found among the cases of Central Americans arrested in these raids. After project lawyers filed emergency appeals, the Board of Immigration Appeals temporarily stopped the deportation of at least seven Central American immigrants so their cases could be reviewed. As CARA Director Katie Shepherd cogently put it, “This is a clear indication that something is very wrong.”

Nor can it be said that deporting those whose asylum cases have been denied after a hearing before an immigration judge is any more reasonable or appropriate. Central Americans fortunate enough to make their case in court with a lawyer are burdened with complicated and exacting legal standards that govern asylum law.

An immigration judge’s refusal to grant a person’s asylum claim hardly means he or she does not face serious, life-threatening harm in the Northern Triangle of El Salvador, Honduras or Guatemala. The bottom line is that for many Central Americans, deportation means the forcible return to a cauldron of life-threatening violence.

At a minimum, the continued ICE raids should be immediately and unequivocally stopped. Raids destroy families, ruin economies and erode the community trust essential to effective local law enforcement.

Fearing deportation, undocumented immigrants may hesitate to report serious crimes to local law enforcement. Immigration raids targeting families, including women and children, should be assigned to the dustbin of history.

Unfortunately, Obama appears to be doubling down. White House press secretary Josh Earnest said Friday that the enforcement strategy will not change.

The president is making a colossal mistake by viewing this crisis solely through the lens of immigration enforcement. It’s much bigger than that – it’s a regional humanitarian crisis that demands a regional solution.

What’s needed now from Obama is leadership, not brutal enforcement policies targeting vulnerable families. Understanding the administration’s legitimate concern about preventing a new border surge, including its concern that those Central Americans who flee north to the United States face a life-threatening journey, Obama must do better than resort to ICE raids.

The president should work with regional partners toward a comprehensive regional solution aimed the root causes of the migration and devote resources to improving the economic and social situation in Central America. That solution includes regional safe havens, so Central American families fleeing violence can find shelter in the area rather than being forced to risk the treacherous journey north.

In the meantime, even if one accepts the administration’s argument that the Central American families targeted for deportation have received fair hearings – which I don’t – that still doesn’t explain why the administration is dispatching armed ICE agents into communities to arrest, detain and forcibly deport families. ICE has the power to allow people who’ve exhausted court proceedings to leave the country on their own. This heavy-handed approach tells me that the president is trying to send a broader message to Central American refugees – that they need not look to America for safety or shelter. That’s reprehensible, and something we’d expect from a President Trump, not President Obama.

Leopold, founder and principal of an immigration law firm in Cleveland that carries his name, is the past president of the Washington-based American Immigration Lawyers Association. 

Immigration raids belong in a Trump, not an Obama, administration

Originally posted on CNN.com by David Leopold

The Obama administration is planning a series of ICE raids beginning in January to ferret out and deport thousands of Central American immigrants who entered the United States in 2014 after fleeing rampant violence in their home countries, according to The Washington Post.

An immigration judge ordered these families deported either because their asylum claims were denied or they didn’t appear for their immigration court hearings. The administration’s plan is shocking, outrageous and just plain wrong. This is something we would expect from a President Trump, not President Obama.

David Leopold

David Leopold

If the raids take place, the President would appear to be reacting — actually overreacting — to a recent spike in the migration of Central American families and unaccompanied children to the United States. He apparently also wants to deter others from making the arduous, life-threatening trip north to the United States and to show that his administration is adhering to its November 14, 2014, immigration enforcement priorities that, in addition to criminals and national security threats, target noncitizens who have entered the U.S. or been ordered deported after January 1, 2014.

But It’s morally repugnant to send Immigration and Customs Enforcement agents into local communities to arrest and detain vulnerable families, including women and children, and deport them to places where their lives will be threatened by unspeakable violence; countries like El Salvador, Guatemala and Honduras, where gang and drug violence force innocent families to flee north to the United States in search of a haven. Reports such as one in the Guardian recount that undocumented immigrants deported to Central America have faced unspeakable violence, even murder, just days after their return.

Donald Trump's clueless immigration plan

We know that most are eligible for asylum or other forms of protection under the law because U.S. Citizenship and Immigration Services data show that an overwhelming percentage of the mothers and children detained at family detention centers in the United States are able to show a reasonable fear of persecution in their home countries.

Other Central Americans ordered deported in absentia may not have had a fair chance to plead their asylum case because they did not get adequate information from government bureaucrats explaining their obligation to go to court. Clearly, being ordered deported under those circumstances is not due process, and families should not be summarily removed from the United States for failure to appear at an immigration court hearing.

Nor can it be said that deporting those whose asylum cases have been denied by a judge is any more reasonable or fair. Central Americans fortunate enough to make their case in court with a lawyer are burdened with complicated and exacting legal standards that govern asylum law.

A key to America's power

An immigration judge’s refusal to grant a person’s asylum claim hardly means he or she does not face serious, life-threatening harm in El Salvador, Honduras or Guatemala. That could include, for example, a woman whose asylum claim has been denied by an immigration judge after she fled gang and drug violence to save her children’s lives.

The bottom line is that for many Central Americans, deportation means the forcible return to a cauldron of life-threatening violence.

At a minimum, the use of ICE raids to execute this plan should be immediately and unequivocally scrapped. The specter of armed ICE agents invading communities early in the morning harkens back to the darkest days of chaotic immigration enforcement. Raids like the ruthless ones inflicted onPainesville, Ohio, in 2007 and Postville, Iowa, in 2008 destroy families, ruin economies and erode the community trust essential to effective local law enforcement.

Faced with the fear that they or a relative might be deported, undocumented immigrants may think twice about reporting serious crimes like domestic violence to local law enforcement. Immigration raids targeting families, including women and children, should be assigned to the dustbin of history.

What’s needed now from the President is leadership, not brutal enforcement policies targeting vulnerable families. Understanding the administration’s legitimate concern about preventing a new border surge, including its concern that those Central Americans who flee north to the United States face a violent and life-threatening journey, we must insist that Obama do better than resort to ICE raids to force the immediate removal of vulnerable families.

Rather than sending families back to the very danger and violence they’ve fled, the administration should work toward a comprehensive regional solution to the humanitarian crisis that’s causing the migration and devote resources to improving the economic and social situation in Central America.

In the meantime, vulnerable families, whether or not they’ve had their day in immigration court, must be provided temporary haven, not threatened with roundups and deportation of the sort envisioned by the likes of Donald Trump.

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