Tag: immigration

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Refugees

In his 2004 novel, “The Plot Against America,” Philip Roth imagines the United States overtaken by fascism. Charles Lindbergh, the aviator and Nazi sympathizer, wins the Republican nomination for president and, with a pledge to keep America out of war, defeats Franklin D. Roosevelt in the election of 1940.

In the authoritarian administration that follows, Lindbergh enters into a nonaggression pact with Hitler and resettles Jews to the interior from cities such as Newark. Roth’s narrator — a boyhood version of the author — recalls a democracy all too capable of abandoning its values in the thrall of a hero turned president.  It’s a terrifying alternate history that challenges the idea it couldn’t happen here.

Roth’s is a work of fiction. But the nightmare has happened in the U.S. In the 1830s, Native Americans were removed by force from their homelands east of the Mississippi River and resettled in Oklahoma. In 1942, the government resettled Americans of Japanese descent from their homes in Northern California to camps in the interior. Two years later, in Korematsu v. United States, a majority of the Supreme Court authorized the internment.

This month, the Supreme Court is expected to rule on a ban on visitors from five predominantly Muslim countries that followed statements by President Trump before and after he took office that he intended to bar Muslims from entering the U.S.

Trump also is leading attacks on allies such as German prime minister Angela Merkel while failing to criticize populists like Italy’s deputy prime minister Matteo Salvini, who has called for a census of that country’s Roma population to determine which should be deported. “Make no mistake, there is a concerted attack on the constitutional liberal order,” Constanze Stelzenmuller, a German scholar at the Brookings Institution, told the Financial Times. “And it is being spearheaded by the president of the United States.”

Last year, 68.5 million men, women and children across the world were forced to leave their homes as a result of persecution, violence, conflict or violations of their human rights, according to a report released last Tuesday by the UN Refugee Agency. The total includes 25.5 million refugees and 40 million people displaced within their own countries.

The numbers tell of misery for the people forced to abandon their homes and, in many instances, to seek refuge in a foreign country. That includes people who seek asylum in the U.S., children in tow, because they fear for their lives in Central American countries plagued by violence.

On the day the UN issued its report, the president addressed a trade group in Washington, where he mocked the Refugee Act of 1980, which offers asylum to immigrants who can document “a well-founded fear of persecution.” According to the president, lawyers for asylum seekers advise their clients “exactly what to say.” He continued:

“They say, ‘Say the following:’ — they write it down — ‘I am being harmed in my country.  My country is extremely dangerous. I fear for my life.’ ‘Say that. Congratulations. You’ll never be removed.’  This is given to them by lawyers who are waiting for them to come up… But, in a way, that’s cheating because they’re giving them statements.  They’re not coming up for that reason. They’re coming up for many other reasons and sometimes for that reason.”

As Trump sees it, invoking the law in pursuit of asylum constitutes cheating. Meanwhile, his administration has separated children of asylees from their parents without recording clearly which kids belong to which parents and without plans (or, apparently, the ability) to reunite them.

Whatever you think of the immigration laws and the need to revise them, the people who invoke them are asserting their rights set forth in the statute. Words have legal significance, including the words uttered by someone who seeks asylum in America.

Trump himself knows the power of words to trigger laws. Or at least he does when it serves his interest to invoke them. Like when the president stated 16 times in one interview last winter that there was “no collusion” between Russians and him to influence the 2016 election.

Some other words that Trump has uttered bear on the immigration crisis he has incited. They’re in the Constitution, which prescribes the oath Trump swore at his inauguration, when he pledged to  “faithfully execute the office of president of the United States.”

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Law

Trump lawsuit against California over immigration may rely on Obama era precedent

In charging the the state of California with interfering with  immigration enforcement, the Trump administration may rely in part on a ruling by the Supreme Court during the Obama administration that upheld the power of the federal government to regulate immigration

In 2010, the state of Arizona passed a law that aimed to ease the ability of officials there to identify, prosecute and deport immigrants who were in the country unlawfully. The Obama administration sued to block enforcement of the measure, which the administration contended interfered with federal enforcement.

A majority of the court agreed. Federal law trumped the Arizona measure, which required that aliens carry proof of registration with the federal government, barred unauthorized immigrants from seeking employment in the state, and allowed state police to arrest someone without a warrant based on suspicion they should be deported.

All conflicted with federal law, the court found. Writing for the majority, Justice Kennedy noted that the federal government has broad authority over immigration.

“With power comes responsibility, and the sound exercise of national power over immigration depends on the nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse,” he wrote. “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law.”

In a lawsuit filed on Tuesday, the Trump administration accused California of undermining federal immigration enforcement by enacting a series of laws that promote so-called sanctuary policies.

In a speech on Wednesday, Attorney General Jeff Sessions accused the state of intentionally using “every power the legislature has to undermine the duly established immigration laws of America.”

California officials responded that the state’s legislation does not interfere with federal law enforcement. Governor Jerry Brown accused the administration of attempting “to further divide and polarize America.”

He pointed to a statement he made last October when he signed the measures. “In enshrining these new protections, it is important to note what the bill does not do,” he wrote. “This bill does not prevent or prohibit Immigration and Customs Enforcement or the Department of Homeland Security from doing their own work in any way.  They are free to use their own considerable resources to enforce federal immigration law in California.”

Legal experts agreed. The laws in Arizona and California differ, with the legislation in the Golden State unlikely to interfere with federal enforcement, Pratheepan Gulasekaram, a professor of law at Santa Clara University who studies state regulation of immigration, told the Associated Press.

Arizona created a “parallel immigration enforcement system” with its own laws, while California is setting standards for cooperation with federal immigration officials,”  Gulasekaram said.

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Trump administration sues California over immigration enforcement

The Trump administration is suing the state of California, charging the state with undermining the ability of the federal government to enforce immigration laws.

At issue in the lawsuit filed Tuesday are three laws enacted last year by California that reinforce so-called sanctuary policies, which aim to protect immigrants who are in the state without documentation from deportation.

One statute bars employers in California from cooperating voluntarily with immigration agents. The second authorizes the state’s attorney general to monitor immigration enforcement by federal agents. A third relieves local officials of an obligation to inform federal agents about immigrants who may be living in the country illegally.

Taken together, the laws “violate the Supremacy Clause, by, among other things, constitution an obstacle to the United States’ enforcement of the immigration laws and discriminating against federal immigration enforcement,” the Justice Department charged in court papers filed in the U.S. District Court in Sacramento.

The lawsuit comes amid a crackdown by the Trump administration on sanctuary policies and follows the arrests by federal agents of 232 people in Northern California as part of the administration’s intensifying  enforcement in the region.

Libby Schaaf, the Democratic mayor of Oakland, warned of imminent raids by federal immigration agents in the San Francisco Bay area. The warning helped about 800 people avoid arrest, said federal officials, who blasted the mayor and said they would investigate her for obstructing justice.

“I do not regret sharing this information,” Schaaf said. “It is Oakland’s legal right to be a sanctuary city and we have not broken any laws.”

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The Trump administration sabotaged a deal on immigration

In my last post, I noted the inability of the Trump administration and Congress to agree on changes to the nation’s immigration laws.

One of four measures – which came closest to passages failed by seven votes in the Senate last Thursday – would have protected hundreds of thousands of young immigrants (a priority of Democrats and some Republicans), provided funds to bolster security along the border with Mexico (a priority of the president), and curbed family-based migration (but not to the extent sought by the administration).

Now thanks to the Washington Post, we know that the administration “worked frantically into the night” to defeat the bill. “We’re going to bury it,” a senior administration official told a reporter on Wednesday night.

According to the Post:

“The assault was relentless — a flurry of attacks on the bill from DHS officials and the Justice Department, and a veto threat from the White House — and hours later, the measure died on the Senate floor.

The Trump administration’s extraordinary 11th-hour strategy to sabotage the bill showed how, after weeks of intense bipartisan negotiations on Capitol Hill, it was the White House that emerged as a key obstacle preventing a deal to help the dreamers.”

The attack on the measure killed what might have been a path to a deal that would have provided relief for so-called Dreamers and a wall along the border that the president has championed.

Meanwhile, a measure backed by the White House that would have slashed legal immigration garnered just 39 votes in the Senate.  “That’s a telling total, one that mirrors the percentage of Americans who still support [the president],” the Post editorialized. “Of the four immigration measures voted on in the Senate last week, the Trump bill had the least support.”

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Law

How not to address immigration

Senators from both parties came together on Thursday to reject a series of proposals to overhaul the nation’s policies on immigration amid signs that a deal that Republicans and Democrats can agree on remains far off for now.

A proposal put forth by a bipartisan group of senators that fell six votes short of passage would have granted legal status to young immigrants, provided $25 billion over the next decade for security at the border with Mexico and curbed family-based migration but not to the extent sought by the Trump administration.

Before voting began, the administration attacked Senator Lindsay Graham, a Republican who helped to craft the measure.  Speaking on the condition of anonymity, a White House official accused Graham of being “an obstacle” for immigration reforms and charged him with “being part of the problem.”

A response by Graham suggested that the official was Stephen Miller, a White House aide and immigration hard-liner who has lobbied for strict limits on the number of people who can come to the U.S. “As long as the president allows Steve Miller and others to run the show down there, we’re never going to get anywhere,” Graham said.

Prospects for an immigration overhaul look no better in the House, where far-right Republicans are pressuring Speaker Paul Ryan to do no more than grant temporary work permits for so-called Dreamers. The conservatives also aim to clamp down on security at the border and restrict legal immigration beyond what the White House has proposed.

The difficulty of resolving differences over immigration by legislation ups the likelihood that the fate of Dreamers will be decided by the courts.

On Tuesday, a federal judge in Brooklyn blocked the Trump administration from ending Deferred Action for Childhood Arrivals (DACA), saying the government had not offered legally adequate reasons for doing so.

In a 55-page ruling, Judge Nicholas Garaufis noted the inconsistency between the administration’s decision to wind down the program with its “stated rationale for ending the program (namely, that DACA was unconstitutional).”

The ruling marked the second by a federal judge to order the administration to keep DACA in place as legal challenges to the rollback continue.

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Trump’s travel ban is moot

The White House needs a travel ban why?

On March 6, the president issued an executive order that banned travelers to the United States from Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days while the government reviewed procedures for vetting visitors from those countries.

Though at least 13 federal courts have blocked the order on constitutional and statutory grounds, the Ninth Circuit ruled in June that the president can proceed with a review to determine what additional procedures, if any, might be needed from the countries subject to the ban that would address security concerns.

Still, the administration has asked the Supreme Court to reinstate the ban and to review decisions by both the Ninth and Fourth Circuits that nullify “a national-security directive of the president,” as Jeffrey Wall, the acting solicitor general, wrote in a brief filed last Wednesday.

Even if the court reviews the executive order, the justices won’t hear arguments in the case until October at the earliest. Which means the administration has at least four months to carry out its review. So review away.

The travel ban will remain blocked, but the White House has cited no reason not to assess the threat. If security is at stake, there’s seemingly no reason to delay. Of course, the White House has cited no evidence that would suggest a threat that Congress didn’t address when it tightened visa procedures 18 months ago.

The State of Hawaii, which challenged the travel ban in the Ninth Circuit, contends as much. “Indeed, there is no need for the court to grant review at all,” the state wrote in its latest brief, noting that by October, “the government will have had almost nine months to complete the review and upgrade of immigration procedures that the order was allegedly designed to accomplish.”

The administration’s actions suggest the travel ban may be motivated less by keeping the nation safe than by keeping the president’s supporters stirring. If so, that’s a political calculation, which the justices don’t review anyway.

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Ninth Circuit misread the law governing the Trump travel ban, government tells Supreme Court

The Ninth Circuit misread the law that underpins the president’s exclusion of visitors to the United States from six majority-Muslim countries, the government argues in a new round of papers that ask the Supreme Court to reinstate the travel ban.

The Immigration and Nationality Act (INA) requires only that the president find entry of a group of visitors to the U.S. would be detrimental to the nation’s interests, regardless of whether Congress comes to the same conclusion, says the government in a brief filed on Thursday. Thus, the appeals court erred when it ruled on June 12 that the travel ban has no basis in the record and therefore exceeds the president’s authority, the government says.

“The court of appeals read into that provision a requirement that, before suspending entry, the president must articulate a factual finding — satisfactory to courts — that support[s] the conclusion that entry of all nationals whose entry he suspends would be harmful to the national interest,” writes the government. “That requirement turns the statute’s text on its head.” [internal quotes omitted]

In its ruling, the Ninth Circuit noted that the executive order containing the ban does not discuss any instances of terrorism in the U.S. by citizens of Iran, Libya, Sudan, Syria or Yemen — an omission the State of Hawaii and others challenging the ban raised before the appeals court and are likely to assert in their brief, which is due this Tuesday. The executive order cites one example of domestic terrorism by a native of Somalia who came to the U.S. at the age of 2.

Uncertainty alone justifies a ban, White House says

Besides relying on a series of State Department reports from 2016, the administration cited no evidence to support its assertion of a threat to national security posed by residents of the six countries. The omission explains in part why the challengers say the reasons for the ban offered by the White House are a pretext to disfavor Islam in violation of the Establishment Clause.

In its brief to the court, the government says the president imposed the travel ban “in the face of uncertainty over whether these foreign governments that sponsor or shelter terrorism are able and willing to provide” information that would allow the Departments of State and Homeland Security to determine whether entry of visitors from those countries constitutes a threat.

The uncertainty alone justifies a halt for three months on visitors while the administration ascertains whether each of the countries can screen travelers sufficiently, says the government.

The administration also urges the justices to overrule a finding by the Ninth Circuit that the travel bank violate the INA’s prohibition on discrimination based on nationality in the issuance of visas. That bar does not apply to the president’s ability to restrict entry of visitors, the government contends.

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Trump travel ban appeal is moot, challengers say

The fate of President Trump’s prohibition on visitors to the U.S. from six majority-Muslim countries may turn on whether the Supreme Court agrees to hear the case at all.

The period of 90 days for the so-called travel ban that took effect in March has expired, the challengers contend in papers filed this week with the court. Thus, the matter is moot, say the challengers, who add it would be premature for the justices to weigh in until the lower courts have resolved the matter on the merits.

Hearing the appeal “would effectively grant the government a victory on the merits,” the State of Hawaii writes in its brief. “Absent the injunction [from the lower courts], the government will have imposed the full travel ban and most of the refugee ban before the October Term begins.”

The Fourth Circuit ruled last month that the travel ban likely violates the Establishment Clause, based on statements by the president that he aimed to keep Muslims out of the U.S. The Ninth Circuit held last week that the president has failed to supply evidence of a threat to national security sufficient to justify the exclusion of 180 million people based on their nationality.

According to Hawaii, the Fourth Circuit correctly considered statements by candidate Trump describing Muslim refugees as a threat in determining “that the stated [national security] rationale is a sham.”

To conclude otherwise would be to authorize presidents to enact policies intended to further unconstitutional aims “by cloaking the policy in neutral terms and a national security rationale,” says Hawaii. “That is not the law.”

The parties have until Wednesday to file briefs addressing the Ninth Circuit’s ruling

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A second federal appeals court rejects Trump’s travel ban

A second federal appeals court has refused to reinstate President Trump’s travel ban after concluding that the prohibition exceeds the scope of his authority.

To justify a ban on visitors to the United States for 90 days from six predominantly Muslim countries, the president by law must find that entry of those visitors would harm the interests of the U.S., a conclusion that has no basis in the record put forward by the White House, a three-judge panel of the Ninth Circuit said in an 86-page ruling published on Monday.

The decision offers a different basis for rejecting the ban than one relied on by the Fourth Circuit, which found that the ban disfavors Islam in violation of the Establishment Clause. The government has appealed that ruling to the Supreme Court. (The challengers’ briefs are due today.)

The executive order that enshrines the travel ban does not discuss any instances of terrorism in the U.S. by citizens of Iran, Libya, Somalia, Sudan or Yemen, the Ninth Circuit ruled. (The order cites one example of domestic terrorism by a native of Somalia who came to the U.S. as a child.)

“The order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the panel wrote. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under [the Immigration and Nationality Act].” (citation omitted)

Nor, the judges said, does the order include a finding by the president that procedures currently in place for screening visa applicants is inadequate. The ban also contravenes a provision in the immigration law that prohibits discrimination in the issuance of visas, the court said.

The Ninth Circuit narrowed an injunction by a district judge in Hawaii in a way that may offer the Supreme Court an out should the justices want to avoid ruling on the ban’s constitutionality. The panel permitted the administration to proceed with a review of vetting procedures to determine what additional information, if any, is needed from the countries subject to the ban that would allow the government to determine whether to issue a visa.

That leaves the possibility the administration would revise the procedures and dispense with the need for a moratorium on issuing visas, a conclusion that could render the appeal moot. Of course, whatever rationale the White House were to cite for revising the vetting procedures would need to be grounded in national security and not merely be a pretext for banning Muslims, which would subject the revised procedures to continued constitutional challenges.

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Trump’s tweets can (and will) be used in court

After President Trump took to Twitter on Monday to defend the merits of his “travel ban” (his words) on visitors to the U.S. from six predominantly Muslim countries, a series of surrogates stepped forward to try to undo the damage to the administration’s defense of the ban in the courts.

Sebastian Gorka, an adviser to Trump, told CNN that tweets “are not policy… [they’re] social media.” In short, Gorka reasoned as follows: Only policy binds the president. Tweets are not policy. Therefore, tweets cannot bind the president.

The premises put forward by Gorka miss the point. Tweets are statements. Under the Federal Rules of Evidence, out-of-court statements, including those made on social media, will be excluded as hearsay if they are used to prove the truth of the matter asserted.

But a statement that would otherwise be hearsay falls outside the definition of hearsay (and therefore can be used in court) if a party to the litigation (insert Trump) said it, and the statement is offered against that party by his opponent (insert those challenging the travel ban).

If you wonder whether Trump is a party to the litigation over his travel ban, here’s how his lawyers captioned the brief they filed on Thursday asking the Supreme Court to revive the ban, which has been blocked by the Fourth Circuit:

Statements via social media are still statements

A statement made through social media fits the exclusion from hearsay so long as it is offered against, not by, the party who made it. As District Judge J. Michelle Childs explains in an article for the American Bar Association:

Social media sites seem designed specifically for users to assert their views, relate their experiences, manifest agreement with others’ opinions, and acknowledge others’ activities. Courts have found these activities to come under [the rule’s] exclusion from hearsay by admission. For example, a plaintiff’s sexually explicit Facebook comments were not hearsay when used by the defendant to show that the defendant’s remarks concerning similar conduct should not be considered harassment against the plaintiff.

Of course, Trump’s lawyers know this, which is how we know that no lawyers reviewed his tweets. The lawyers for those challenging the travel ban know it, too, which is why they welcomed the tweets. Here’s reaction from Neal Katyal, who argued on behalf of the challengers in the Ninth Circuit:

And here’s reaction from Omar Jadwat, the attorney who persuaded the Fourth Circuit to suspend the travel ban:

Trump’s lawyers argue that if you set aside statements by Trump and his surrogates during the campaign (and a few statements following the inauguration) you’ll see that the appeals court erred in enjoining the travel ban. The presidential oath of office transformed Trump into the chief executive, whose determinations regarding immigration policy are entitled to deference by the courts, say his lawyers:

Taking that oath marks a profound transition from private life to the Nation’s highest public office, and manifests the singular responsibility and independent authority to protect the welfare of the Nation that the Constitution reposes in the President.

Trump shattered that notion in five 140-character outbursts. Expect to read his tweets in papers the Supreme Court has asked the challengers to file by this Monday. Yet in the end, the travel ban will fall not because the president tweeted about it. The travel ban will fall because it disfavors a particular religion in violation of the Constitution.