FELIPE DE LA HOZ @ THE NATION: “The Shadow Court Cementing Trump’s Immigration Policy” — “It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

🏴‍☠️⚰️☠️👎

 

https://www.thenation.com/authors/felipe-de-la-hoz/

 

Just eight miles from the White House, the Trump administration has quietly opened a new front in its war against immigrants. Inside a 26-story office tower next to a Target in Falls Church, Virginia, the Board of Immigration Appeals has broken with any pretense of impartiality and appears to be working in lockstep with the administration to close the door on immigrants’ ability to remain in the country.

Created in 1940, when the immigration system was moved from the Department of Labor to the Justice Department, BIA serves as the appellate court within the immigration system, where both ICE prosecutors and noncitizen respondents can appeal decisions by individual immigration court judges around the country. It not only decides the fate of the migrants whose cases it reviews; if it chooses to publish a decision, it sets precedent for immigration courts across the country.

Under previous administrations, the BIA was ostensibly impartial and bipartisan, though mainly out of a long-standing tradition of promoting judicial objectivity. Since the entire immigration court system is contained in the Department of Justice—within an administrative agency known as the Executive Office for Immigration Review (EOIR)—immigration judges, including those serving as board members on the BIA, are employees of the DOJ, and, by extension, are part of the executive branch. Unlike their counterparts in the federal judiciary, immigration judges are not independent.

TOP ARTICLES2/5READ MOREPence Masks Up While Trump Keeps Dog-Whistling

Since 2018, the Trump administration has exploited its powers over the BIA by expanding the board from 17 to 23 members to accommodate additional anti-immigrant hardliners. Justice Department memos obtained by the American Immigration Council and the American Immigration Lawyers Association (AILA) show that EOIR pushed shorter hiring timelines, which were used to bring on judges with more restrictionist records.

Now the court is stacked with members who have consistently ruled against immigrants, such as one judge who threatened to unleash a dog on a two-year-old boy during a hearing. Numbers obtained by a law firm through a Freedom of Information Request show that the six BIA judges appointed by Attorney General William Barr all had granted asylum in less than 10 percent of cases in fiscal year 2019. (One never granted asylum, despite hearing 40 cases.) An EOIR spokesperson told The Nation in an e-mail that“EOIR does not choose Board members based on prohibited criteria such as race or politics” and that “Board members are selected through an open, competitive, merit-based process.”

The most notable example of the administration’s preference for ultraconservative judges came in late May, when Barr appointed David H. Wetmore as BIA chairman. Wetmore, a former immigration adviser to the White House Domestic Policy Council, was around for some of the Trump administration’s most egregious policies, including the travel ban and family separation policy.

Although only two decisions have been issued since Wetmore was appointed chair, he seems set to pick up where his predecessor, former Acting Chair Garry G. Malphrus, left off. Malphrus, a George W. Bush holdover, became the face of the court’s lurch to curtail immigrants’ legal protections since Trump took office. He had the hawkish bona fides that made him an ideal chairman under the Trump DOJ: From 1997 to 2001, he served as chief counsel to one-time segregationist Senator Strom Thurmond on the Senate Judiciary Committee, and he was made associate director of the White House Domestic Policy Council after his roleas a Brooks Brothers rioter during the 2000 Bush v. Gore recount in Florida—during which GOP operatives staged a protest that disrupted a recount and may have handed Bush the presidency.

Malphrus was made acting chair in 2019, and authored 24 of the 78 BIA precedential decisions issued under the current administration. Almost all of these precedential decisions have made it more difficult for immigrants to win their cases. The board made it harder for victims of terrorism to win asylum and raised the bar of evidence needed for several types of protections.

“It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

Consider this: In a case decided in January, the BIA was considering whether an immigration judge had erred in refusing to postpone a removal decision for a person awaiting a decision on a U visa application—a visa type reserved for victims of certain crimes or those cooperating with authorities investigating a crime—to be resolved. (ICE had recently changed their policies to make it easier to deport people in this situation.) The BIA sided with the judge, acknowledging that the crime victim was “eligible for a U visa” but was not entitled to wait to receive it, in part due to his “lack of diligence in pursuing” one. The decision signals that immigrants eligible for crime victim visas, and who are willing to cooperate with law enforcement, can still be ordered deported.

While federal courts hear public oral arguments and largely deliberate openly, the BIA typically uses a paper review method, which means they receive briefs from opposing parties and hand down a decision some time later with the whole intervening process shrouded in secrecy. “Unlike federal courts, where unpublished decisions are still accessible by the public, and so you can track what judges are saying in decisions that do not make precedent, the [BIA] only sporadically releases those decisions,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.

. . . .

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Read the rest of Filipe’s article at the link.

 

Filipe’s final point in the article is one we should all keep in mind:

 

For hundreds of thousands of immigrants, it doesn’t matter if the anti-immigrant paper pushers in this obscure administrative body are tossed out and all of the policy is slowly reversed by another administration; for most, one shot is all they get. Whether a case was winnable before or even after the Trump BIA is irrelevant. The chance to stay in the United States will be lost forever.

The damage to our humanity and our national conscience inflicted by Trump’s White Nationalist regime, wrongfully enabled by complicit Supremes, and aided and abetted by a GOP Senate will not be “cured” by inevitable later “reforms,” be they next year under a better Administration or decades from now, as is happening with other racial justice issues. Undoubtedly, as eventually will be established, the current anti-immigrant and particularly the anti-asylum policies of the Trump regime are deeply rooted in racism, xenophobia, and misogyny. One need only look at the well-documented careers of “hate architects” like Stephen Miller, Steve Bannon, and Jeff Sessions to see the intentional ignorance and ugliness at work here.

I frankly don’t see how we as a nation ever can come to grips with the racial tensions and demands for equal justice now tearing at our society without recognizing the unconscionable racism and immorality driving our current immigration and refugee policies and the failure and untenability of too many leaders in all three branches who have either helped promote racial injustice or have lacked the moral and intellectual courage consistently to stand up against it. They are the problem, and their departure or disempowerment, no matter how long it takes, will be necessary for us eventually to move forward as one nation.

Due Process Forever!

PWS

06-30–20

 

🏴‍☠️☠️👎🏻BILLY’S BIA BLOWS ANOTHER — After Two Trips to The 8th Cir. Over 5 Years, The BIA Is Batting .000 — Ortiz v. Barr — CIMT

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca8-on-cimt-ortiz-ii-obstruction

Dan Kowalski reports for LexisNexis Immigration Community:

CA8 on CIMT: Ortiz II (Obstruction)

Ortiz v. Barr

“[In Ortiz I, this] Court determined that a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) [obstruction of legal process, arrest, or firefighting] is not categorically a crime of violence—and, thus, not an aggravated felony—because the minimum amount of force required to sustain a conviction under that statute is less than the level of force required to constitute a crime of violence under Johnson v. United States, 559 U.S. 133, 140 (2010). Ortiz v. Lynch, 796 F.3d 932, 935-36 (8th Cir. 2015). Accordingly, we granted Ortiz’s petition for review, vacated the order of removal, and remanded to the BIA to decide whether Ortiz’s prior conviction nonetheless subjected him to removal under 8 U.S.C. § 1227(a)(2)(A)(i) as a crime involving moral turpitude.

… Pursuant to the parties’ joint motion, the BIA remanded the case to the IJ to decide the issue. Ortiz again moved to terminate removal proceedings, arguing that a conviction for obstruction of legal process under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not a crime involving moral turpitude. The IJ denied the motion, finding that Ortiz’s prior conviction was categorically a crime involving moral turpitude because (1) the statute requires intentional conduct, and (2) using or threatening force or violence to obstruct legal process entails conduct that is inherently base, vile, or depraved and contrary to accepted rules of morality. Accordingly, the IJ sustained the charge of removability under 8 U.S.C. § 1227(a)(2)(A)(i) and ordered Ortiz’s removal from the United States to Mexico on that basis. The BIA affirmed the IJ’s decision, adding that the minimum conduct punishable by the statute falls within the definition of “moral turpitude” because it involves some aggravating level of force or violence in the context of interference with important and legitimate government functions. Ortiz again filed a timely petition for review.

…  [W]e conclude that the BIA erred in finding that a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is categorically a crime involving moral turpitude. For the foregoing reasons, we hold a conviction under Minn. Stat. Ann. § 609.50, subdiv. 2(2) is not categorically a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). We, therefore, grant Ortiz’s petition for review and vacate the order of removal.”

[Attorney David L. Wilson writes: “This statement is particularly helpful and could go unnoticed. The court wrote, “Further, because subdivision 2(2) is a penalty provision, rather than a “statutory element[] that criminalize[s] otherwise innocent conduct,” the presumption in favor of a scienter requirement does not apply. United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).” The government has been trying to invoke this argument for some time, and the Eighth just shut it down.  A round of applause to Anne Carlson for the first round of the fight, and Brittany Bakken for bearing with me for the second round.”]

*********************

Bottom line: For more than five years over two Administrations on a number of charges, EOIR has been attempting to wrongfully deport this individual. This falls below the “minimum level of competence” that should be expected of an “expert tribunal” that is nothing other than a deportation factory with a fancy title. And, let’s remember that the 8th Circuit, out in the middle of “America’s Heartland,” is hardly the 9th Circuit, the 7th Circuit, or even the 4th Circuit, all of which have been much more openly critical of the BIA’s lousy performance.

The cost of “deportation at any cost” is too high for America! Whatever happened to due process, fundamental fairness, and impartial judging? Gone by the wayside! No wonder this unfair and dysfunctional system is running a largely self-inflicted backlog of more than 1.4 million known cases and “who knows how many” that are lost or otherwise “off-docket” in the EOIR morass of biased judging and gross mismanagement.

When will it end? How many will be wrongfully deported or die because one of American’s largest “court” systems (that isn’t’ a “court” at all) is allowed to continue to operate far below minimum levels of constitutionality and competence?

Due Process Forever!

PWS

06-29-30

🏴‍☠️☠️🤮⚰️👎🏻AMERICAN INJUSTICE: A COURT SUPREMELY WRONG FOR OUR TIME: Justices Who Oppose Equal Justice For All, View Refugees & Asylum Seekers As Subhuman, Are Incapable Of Consistent Moral Leadership, & Willingly Participate In & Hollowly Attempt To Justify The Bullying Of “The Other” Are Fueling America’s Race To The Bottom Under Trump! — “They believe these people do not deserve an iota of sympathy, let alone due process. That is already how many border agents viewed these immigrants: not as humans with rights, but as fraudulent parasites. The Supreme Court has now transformed that vision into law—and, in the process, allowed the executive to send more persecuted people to their deaths without even a meaningful day in court.”

https://slate.com/news-and-politics/2020/06/supreme-court-asylum-deportations-thuraissigiam.html

From Slate:

JURISPRUDENCE

The Supreme Court Doesn’t See Asylum-Seekers as People — One week after saving DACA, the high court proved that its sympathies for immigrants seeking better lives are limited.

By DAHLIA LITHWICK and MARK JOSEPH STERN

JUNE 25, 20203:35 PM

Last Thursday, the Supreme Court saved more than 700,000 immigrants from the Trump administration’s nativist buzz saw. The court ensured that these immigrants, who were brought to the United States by their undocumented parents as children, would continue to be protected by an Obama administration policy called Deferred Action for Childhood Arrivals, sparing them from deportation to countries many could not even remember. The court split 5–4, with Chief Justice John Roberts throwing his lot in with the liberals to find that Donald Trump’s rescission of DACA had been unlawful—largely because it had been carelessly effectuated, defended pretextually, but also because hundreds of thousands of young people had altered their lives in reliance on the promise that they would be immune from deportation.

In a key section of the majority opinion, Roberts highlighted the humanity of these young undocumented people, as was the hopes and dreams of their families: “Since 2012, DACA recipients have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on DACA, Roberts wrote, quoting from briefs in the case. “The consequences of the rescission … would ‘radiate outward’ to DACA recipients’ families, including their 200,000 U.S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them.” The chief justice evinced frustration that the Trump administration seemingly took none of those very human interests into account.

One week later, on Thursday morning, the high court proved that its sympathies for immigrants seeking better lives are limited. In a 7–2 ruling, the justices approved the Trump administration’s draconian interpretation of a federal law that limits courts’ ability to review deportation orders. This time around, the court did not note immigrants’ contributions to the nation or acknowledge their humanity in any way. Having last week treated one class of immigrants like actual people, the court on Thursday pivoted back to callous cruelty. All of the chief justice’s kind words about DACA recipients seemingly do not apply to immigrants who—according to the executive branch—do not deserve asylum.

Thursday’s case, Department of Homeland Security v. Thuraissigiam, involves an asylum-seeker from Sri Lanka named Vijayakumar Thuraissigiam who faces likely death if he is deported because he is Tamil. Thuraissigiam was apprehended by the U.S. Border Patrol while trying to cross at the southern border in 2017. After an asylum officer and immigration judge rejected his claims, Thuraissigiam was slated for “expedited removal.” Federal law bars courts from reviewing that deportation order. But the 9th U.S. Circuit Court of Appeals found the law unconstitutional as applied to Thuraissigiam under the Constitution’s suspension clause, which limits the government’s ability to restrict habeas corpus—the centuries-old right to contest detention before a judge.

At the Trump administration’s request, the Supreme Court reversed the 9th Circuit, with Justice Samuel Alito writing a maximalist majority opinion for the five conservatives and Justices Stephen Breyer and Ruth Bader Ginsburg proffering a narrower concurrence. Justice Sonia Sotomayor penned a lengthy, vivid dissent joined by Justice Elena Kagan that accused the majority of flouting more than a century of precedent and “purg[ing] an entire class of legal challenges to executive detention.” (In his own opinion, Alito dismissed Sotomayor’s criticisms as mere “rhetoric.”)

This outcome strips due process from immigrants seeking asylum, who now have even fewer rights to a fair adjudicatory process under an expedited system that already afforded them minimal protections. It will also embolden the Trump administration to speed up deportations for thousands of people with no judicial oversight. Under this now court-approved system, immigrants fleeing their home country must undergo a “credible fear” interview, at which they must explain to a federal officer why they qualify for asylum. (The Trump administration has allowed Customs and Border Protection agents—not trained asylum officers—to conduct credible fear interviews.) If the officer finds no “credible fear of persecution,” their supervisor reviews the determination, as does an immigration judge (who is not a traditional judge but rather an employee of the executive branch appointed by the attorney general). If these individuals find no credible fear, the immigrant is thrown into “expedited removal”—that is, swiftly deported in a matter of weeks. They may not contest the government’s “credible fear” determination before a federal court. It is this extreme rule that Thuraissigiam challenged as a violation of habeas corpus and due process.

Alito breezily dismissed Thuraissigiam’s individual claims by stripping a broad swath of constitutional rights from unauthorized immigrants. First, he declared that habeas corpus does not protect an immigrant’s ability to fight illegal deportation orders. Sotomayor fiercely contested this claim, citing an “entrenched line of cases” demonstrating that habeas has long protected the right of individuals—including immigrants—to challenge illegal executive actions in court. Second, Alito held that unauthorized immigrants who are already physically present in the United States have not actually “entered the country.” Thus, they have no due process right to challenge the government’s asylum determination. Sotomayor noted that this holding departs from more than a century of precedent by imposing distinctions drawn by modern immigration laws on the ancient guarantee of due process.

Alito not only waved away these galling consequences; he seemed to laugh at them.

The upshot of the decision will mean almost certain death for Thuraissigiam and others like him. Thuraissigiam faced brutal persecution in Sri Lanka, a fact Alito did not seem to understand at oral arguments. Various officials in the executive branch shrugged off that persecution. Thuraissigiam just wants an opportunity to prove to a federal judge that these officials violated the law by denying his asylum claim. Now, thanks to the Supreme Court, he cannot. Nor can the many immigrants thrown into expedited removal by the Trump administration, which has used the process as a tool to speed up deportations across the country. Just two days ago, a federal appeals court cleared the way for the government to expand expedited removal beyond immigrants intercepted near the border to those apprehended anywhere in the nation. The administration has shown little interest in carefully considering whom it’s deporting; now many of those decisions will be rubber-stamped by executive officers and left unscrutinized by the federal judiciary.

Alito not only waved away these galling consequences; he seemed to laugh at them. Not for a moment does he appear to believe that asylum-seekers may be genuinely in fear for their lives. Among the many bon mots dropped by Alito in his opinion, he wrote: “While [Thuraissigiam] does not claim an entitlement to release, the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka.” Given that Thuraissigiam claims he will likely be tortured to death if he is sent back to Sri Lanka, it’s not clear that line means what he thinks it does. Throughout the opinion Alito refers to Thuraissigiam as either “alien” or “respondent” and appears simply incapable of imagining that his claims are truthful.

RECENTLY IN JURISPRUDENCE

It’s easy to miss the massive erosion of asylum-seekers’ rights in the victory last week around the triumph of DACA. But in some ways, it’s the most American outcome in the world to view DACA beneficiaries as more human because they have gone to school here and birthed children here, while scoffing at asylum-seekers, who, as part of a lengthy tradition under both constitutional and international law, simply ask the U.S. government to save their lives. Roberts, who seemed so attuned to the hardships of DACA recipients, joined Alito’s merciless opinion in full; in fact, the chief justice assigned the opinion to Alito, who has become the court’s staunchest crusader against immigrants’ rights.

The court’s split shows that a majority of justices think immigrants like Thuraissigiam are not the productive young people of the DACA case, with financial and familial ties to all that makes America great, but rather faceless masses cynically manipulating America’s generous asylum policy and overwhelming its immigration system. They believe these people do not deserve an iota of sympathy, let alone due process. That is already how many border agents viewed these immigrants: not as humans with rights, but as fraudulent parasites. The Supreme Court has now transformed that vision into law—and, in the process, allowed the executive to send more persecuted people to their deaths without even a meaningful day in court.

Support our independent journalism

 

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Imposing death sentences without fair hearings, or indeed any real hearings at all, is bad stuff. And, Justices who justify this behavior should not be on the bench at all.

Sadly, that applies just as much to the two so-called “liberal icons” who voted with Alito and four other sneering colleagues who seemed to actually glory in being able to dehumanize another soul with the audacity to fight for his life. Frankly, this stuff is right out of the Third Reich. Read a few of the German Judiciary’s opinions of the time and see how quickly, easily, naturally, and often happily Reich jurists “justified the unjustifiable and the unthinkable.”  I have no doubt that Sam Alito and some of his colleagues would have fit right in. How has American Justice gotten to this incredible “low point.”

I don’t know exactly what we can do about life-tenured judges who are unqualified for their jobs. Life tenure is there for a reason — to insure judicial independence overall, even in particular instances like this where it clearly does no such thing. And, with 200+ largely unqualified Trump appointees now on the Federal Bench, essentially “young deadwood,” the problem will get worse before it gets better.

The first step is to replace Trump and oust the GOP from the Senate. Then, methodically appoint only judges committed to equal justice for all, willing to stand up against abuses of justice by both the Executive and the Congress, and whose life experiences and legal work show an unswerving commitment to human rights and the rights of migrants to be treated as persons (fellow humans) under law.

It’s a national disgrace that with immigration and human rights the major issues clogging today’s Federal Courts, few, if any, Federal Judges have any experience representing asylum seekers in the Star Chambers known as “Immigration Courts” nor have they personally experienced the type of dehumanization, racism, torture, grotesque abuses, and unnecessary cruelty that they so unnecessarily, uncourageously, and glibly inflict on migrants and asylum seekers who indeed are the most vulnerable among us. If immigration and human rights are the pivotal issues of American justice, then we need to get Justices and judges on the bench who understand what they are doing and the dire human consequences of their actions (or inactions). 

The situation of today’s asylum seekers of color is not much different from that of others Americans of color whose legal and Constitutional rights were denied, and whose humanity was intentionally degraded, by a corrupt judiciary and a legal system that intentionally failed to make Constitutonal equal justice for all a reality rather than a cruel fiction .

A nation that doesn’t demand better judges will never rise above its own mistakes and failures. And a Federal Judiciary that so obviously and intentionally lacks diversity and humanity can never properly serve the national interest. 

Ditch the clueless, largely white, male “dudocracy” with their Ivy League degrees and not much else to offer. Appoint judges schooled in real life, who know what the law means in human terms and will use it to solve, rather than aggravate, inflame, or avoid, human problems! There are tons of such lawyers out there. We all know them. We need them to move from the “bullpen” to the Federal Benches, before it’s too late for everyone in America!

Folks, what we have here is “judicially-approved murder without trial.” It could also be called “extrajudicial killing.” Ugly, but brutally true! “The upshot of the decision will mean almost certain death for Thuraissigiam and others like him.” We should understand what’s happening, even if seven disingenuous and unqualified members of our highest court claim not to know or care what they are doing and refuse to acknowledge the real life consequences of their deep, dark, and disturbing intellectual corruption and their studied lack of human compassion, empathy, and decency.

Vote ‘Em Out, Vote ‘Em Out! It’s a Start On A Better Court, For America & For Humanity!

PWS

06-28-20

ASIAN AMERICANS FEEL THE STING OF TRUMP’S  RACISM — THEY ARE FIGHTING BACK AGAINST THE GOP’S CAMPAIGN OF HATE AND STUPIDITY — Once Targeted By The “Chinese Exclusion Act” & The “Asia-Pacific Barred Zone,” Later Dubbed The “Model Minority” By White Racists, Asian Americans Are Bonding With Other Targets Of Trump’s Program Of Dehumanization To Resist Racism in America: “The current protests have further confirmed my role and responsibility here in the U.S.: not to be a ‘model minority’ aspiring to be white-adjacent on a social spectrum carefully engineered to serve the white and privileged, but to be an active member of a distinct community that emerged from the tireless resistance of people of color who came before us.”

https://apple.news/AtFy-2-s8SviGlrVZK5m0ag

From Time:

‘I Will Not Stand Silent.’ 10 Asian Americans Reflect on Racism During the Pandemic and the Need for Equality

SANGSUK SYLVIA KANG

ANNA PURNA KAMBHAMPATY

Diseases and outbreaks have long been used to rationalize xenophobia: HIV was blamed on Haitian Americans, the 1918 influenza pandemic on German Americans, the swine flu in 2009 on Mexican Americans. The racist belief that Asians carry disease goes back centuries. In the 1800s, out of fear that Chinese workers were taking jobs that could be held by white workers, white labor unions argued for an immigration ban by claiming that “Chinese” disease strains were more harmful than those carried by white people.

Today, as the U.S. struggles to combat a global pandemic that has taken the lives of more than 120,000 Americans and put millions out of work, President Donald Trump, who has referred to COVID-19 as the “Chinese virus” and more recently the “kung flu,” has helped normalize anti-Asian xenophobia, stoking public hysteria and racist attacks. And now, as in the past, it’s not just Chinese Americans receiving the hatred. Racist aggressors don’t distinguish between different ethnic subgroups—anyone who is Asian or perceived to be Asian at all can be a victim. Even wearing a face mask, an act associated with Asians before it was recommended in the U.S., could be enough to provoke an attack.

Since mid-March, STOP AAPI HATE, an incident-reporting center founded by the Asian Pacific Policy and Planning Council, has received more than 1,800 reports of pandemic-fueled harassment or violence in 45 states and Washington, D.C. “It’s not just the incidents themselves, but the inner turmoil they cause,” says Haruka Sakaguchi, a Brooklyn-based photographer who immigrated to the U.S. from Japan when she was 3 months old.

Since May, Sakaguchi has been photographing individuals in New York City who have faced this type of racist aggression. The resulting portraits, which were taken over FaceTime, have been lain atop the sites, also photographed by Sakaguchi, where the individuals were harassed or assaulted. “We are often highly, highly encouraged not to speak about these issues and try to look at the larger picture. Especially as immigrants and the children of immigrants, as long as we are able to build a livelihood of any kind, that’s considered a good existence,” says Sakaguchi, who hopes her images inspire people to at least acknowledge their experiences.

Amid the current Black Lives Matter protests, Asian Americans have been grappling with the -anti-Blackness in their own communities, how the racism they experience fits into the larger landscape and how they can be better allies for everyone.

“Cross-racial solidarity has long been woven into the fabric of resistance movements in the U.S.,” says Sakaguchi, referencing Frederick Douglass’ 1869 speech advocating for Chinese immigration and noting that the civil rights movement helped all people of color. “The current protests have further confirmed my role and responsibility here in the U.S.: not to be a ‘model minority’ aspiring to be white-adjacent on a social spectrum carefully engineered to serve the white and privileged, but to be an active member of a distinct community that emerged from the tireless resistance of people of color who came before us.”

Justin Tsui

“I didn’t think that if he shoved me into the tracks I’d have the physical energy to crawl back up,” says Tsui, a registered nurse pursuing a doctorate of nursing practice in psychiatric mental health at Columbia University. Tsui was transferring trains on his way home after picking up N95 masks when he was approached by a man on the platform.

The man asked, “You’re Chinese, right?” Tsui responded that he was Chinese American, and the man told Tsui he should go back to his country, citing the 2003 SARS outbreak as another example of “all these sicknesses” spread by “chinks.” The man kept coming closer and closer to Tsui, who was forced to step toward the edge of the platform.

“Leave him alone. Can’t you see he’s a nurse? That he’s wearing scrubs?” said a bystander, who Tsui says appeared to be Latino. After the bystander threatened to re­cord the incident and call the police, the aggressor said that he should “go back to [his] country too.”

When the train finally arrived, the aggressor sat right across from Tsui and glared at him the entire ride, mouthing, “I’m watching you.” Throughout the ride, Tsui debated whether he should get off the train to escape but feared the man would follow him without anyone else to bear witness to what might happen.

Tsui says the current anti­racism movements are important, but the U.S. has a long way to go to achieve true equality. “One thing’s for sure, it’s definitely not an overnight thing—I am skeptical that people can be suddenly woke after reading a few books off the recommended book lists,” he says.“Let’s be honest, before George Floyd, Breonna Taylor and Ahmaud Arbery, there were many more. Black people have been calling out in pain and calling for help for a very long time.”

. . . .

************************

Read the other nine profiles and see Haruka Sakaguchi’s great photography at the link.

Racism, hate, cruelty, ignorance, dehumanization, inequality, and incompetence are the planks of Trump’s re-election “platform.”

This November, vote like your life depends on it! Because it does!

PWS

06-28-20

🏴‍☠️☠️BILLY THE BIGOT BARR’S BIASED BIA’S EFFORT TO SEND LGBTQ INDIVIDUAL TO BE TORTURED IN MEXICO THWARTED BY 9TH CIR. – Unconstitutional “Star Chamber” Ignored Binding Circuit Precedent in Deadly Attempt to Carry Out White Nationalist Regime’s Assault on Legal & Human Rights of Migrants — Xochihua-Jaimes v. Barr

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Immigration Law

Daniel M. Kowalski

26 Jun 2020

CA9 on CAT, Mexico, Zetas, LGBTQ: Xochihua-Jaimes v. Barr

Xochihua-Jaimes v. Barr

“Substantial evidence does not support the BIA’s determination that Petitioner failed to meet her burden of proof under CAT that she would more likely than not be tortured, with the consent or acquiescence of a public official, if returned to Mexico. The BIA reached its determination by misapplying our precedents regarding acquiescence of a public official and regarding the possibility of safe relocation, as well as by making or affirming factual findings that are directly contradicted by the record. Contrary to the BIA’s determination, we hold that the existing record compels the conclusion that Petitioner has met her burden under CAT. … the record also includes extensive evidence that LGBTQ individuals are subject to a heightened risk of torture throughout Mexico. Considering all relevant evidence, we conclude that the record compels the conclusion that petitioner has met her burden of proof to establish that it is more likely than not that she will suffer future torture if removed to her native country. … We grant the petition and remand for the agency to grant deferral of removal pursuant to CAT because the record compels the conclusion that Petitioner will more likely than not be tortured if she is removed to Mexico.”

[Hats way off to appointed pro bono counsel Max Carter-Oberstone (argued) and Brian Goldman!]

 

*************************************

One of the best things about this case is that obviously frustrated by the BIA’s “malicious incompetence” and basically contemptuous treatment of binding Circuit precedent, the Court took the unusual step of granting the CAT application outright. Often, cases are remanded to the BIA for useless “redos.” Not only can they get lost on EOIR’s totally out of control docket of 1.4 million+ cases, but that  gives the BIA another undeserved chance to concoct some bogus rationale to screw the respondent.

It’s past time for more courts to treat EOIR as the hostile “justice free zone” it has become under Sessions and now Barr.  The absolute disaster at the DOJ under Barr was on full, ugly display before the House this week. Courts must treat the DOJ as the unethical, biased, renegade organization that it really is rather than pretending that it still performs any legitimate functions under our
Constitution.

The Supremes might feign ignorance of the Trump regime’s institutionalized racist assault on migrants, particularly those seeking protection. But, some of the lower Federal Courts finally are catching on to what’s happening here. How is this type of systemic, illegal, incompetent, and unethical performance by Billy Barr’s wholly-owned “courts” that are not “courts” at all deemed acceptable? People’s lives are at risk!

 

Better Executive + Better Legislature + Better Judges = Equal Justice for All!

 

PWS

 

06-27-20

👎THIEF-IN-CHIEF: TRUMP MISAPPROPRIATED MONEY TO BUILD WASTEFUL WALL — Symbol of Hate, Stupidity Built With Stolen Funds, Says 9th Circuit!

Wall Funding Illegal – Bing

By Bob Egelko

San Francisco Chronicle

Three days after President Trump took his re-election campaign to a construction site of his border wall in Arizona, a federal appeals court ruled Friday that he had defied Congress’ constitutional authority over federal spending by redirecting $2.5 billion in military funds to build 130 miles of barriers in California, Arizona and New Mexico.

Congress appropriated the funds for military pay, weapons and other Defense Department purposes, and never authorized Trump to spend them on wall construction, the Ninth U.S. Circuit Court of Appeals in San Francisco said in a pair of 2-1 rulings.“Funding for the wall had been denied by Congress,” and the Trump administration “lacked independent constitutional authority to authorize the transfer of funds,” said Chief Judge Sidney Thomas, joined by Judge Kim Wardlaw. Both were appointed by President Bill Clinton.

Judge Daniel Collins, a Trump appointee, dissented from both decisions. He said the military funds were legally transferred and also that the plaintiffs — California and 15 other states, the Sierra Club and and an advocacy group for border communities — had no right to sue over the alleged violation of congressional spending powers.

Although the appeals court upheld a federal judge’s injunction against construction of the wall segments, the ruling did not halt construction. The Supreme Court voted 5-4 last July to allow the work to continue while the case proceeded. Its brief, unsigned decision said the administration “has made a sufficient showing at this stage that the plaintiffs have no cause of action” — that is, that they had not shown direct harm from the construction that would entitle them to challenge it in court.

The appeals court majority reached a different conclusion, citing the plaintiffs’ claims that the wall was harming the environment and wildlife at the border and the states’ ability to enforce their own environmental laws. Similar issues are pending before the same panel in a case over $3.6 billion for additional wall segments, and the dispute could soon return to the high court.

. . . .

***************

Read the rest of the article at the link.

The Supreme’s majority appear to be in Trump’s pocket on this one. So, the fraud, waste, abuse, and mindless environmental destruction is likely to continue until we get regime change.

PWS

06-26-20

U.S. JUDGE ORDERS RELEASES FROM TRUMP’S KIDDIE GULAG☠️🤮🏴‍☠️ — Trump/Miller Child Abuse Derailed — “Perps” Remain At Large!

Federal Judge Orders U.S. To Release Migrant Children During Pandemic

Children held for more than 20 days at certain ICE-run detention centers should be released, decided a U.S. District Judge.

 

HOUSTON (AP) — A federal judge on Friday ordered the release of children held with their parents in U.S. immigration jails and denounced the Trump administration’s prolonged detention of families during the coronavirus pandemic.

U.S. District Judge Dolly Gee’s order applies to children held for more than 20 days at three family detention centers in Texas and Pennsylvania operated by U.S. Immigration and Customs Enforcement. Some have been detained since last year.

Citing the recent spread of the virus in two of the three facilities, Gee set a deadline of July 17 for children to either be released with their parents or sent to family sponsors.

The family detention centers “are ‘on fire’ and there is no more time for half measures,” she wrote.

In May, ICE said it was detaining 184 children at the three detention centers, which are separate from U.S. Department of Health and Human Services facilities for unaccompanied children that were holding around 1,000 children in early June. The numbers in both systems have fallen significantly since earlier in the Trump administration because the U.S. is expelling most people trying to cross the border or requiring them to wait for their immigration cases in Mexico.

Gee oversees a long-running court settlement governing the U.S. government’s treatment of immigrant children known as the Flores agreement. Her order does not directly apply to the parents detained with their children.

But most parents last month refused to designate a sponsor when ICE officials unexpectedly asked them who could take their children if the adults remained detained, according to lawyers for the families. The agency said then it was conducting a “routine parole review consistent with the law” and Gee’s previous orders.

*********************

Read the rest of the story at the link.

The bad news: The evil masterminds of these “crimes against humanity,” Trump, Miller, Sessions, Barr, Wolf, and a host of other dangerous child abusers remain at large. Most are still on the Federal payroll and one actually has the audacity to run for a public office for which he is totally unqualified. Hopefully, they will be made to answer for their crimes at some later point in time.

PWS

08-26-20

LAW YOU CAN UNDERSTAND: Forget The 55 Pages of Butt-Covering BS & Turgid Legal Gobbledegook 🤮 From 7 Supremes Who Don’t Believe in Constitutional Due Process or Racial Equality in America 🏴‍☠️☠️  — Nicole Narea @ Vox Explains in A Few Cogent Paragraphs How 7 Tone-Deaf & Complicit Justices Have Put All Americans of Color Directly in The Crosshairs of Trump’s DHS Enforcement👎🏻!

 

Nicole Narea
Nicole Narea
Immigration Reporter
Vox.com

https://apple.news/A-z_VER0yTe–4NlleNgc9g

Nicole writes:

The Supreme Court just issued a ruling with sweeping, immediate implications for the immigration enforcement system, potentially allowing the Trump administration to move forward in deporting tens of thousands of immigrants living in the US with little oversight.

The case, Department of Homeland Security v. Thuraissigiam, concerns immigration officials’ authority to quickly deport migrants who don’t express fear of returning to their home countries, which would make them eligible for asylum. The process, first enacted in 1996 and known as “expedited removal,” takes weeks, rather than the typical years it can take to resolve a full deportation case, and does not involve a hearing before an immigration judge or offer immigrants the right to a lawyer.

In a 7-2 decision, the justices found Thursday that newly arrived immigrants don’t have the right to challenge their expedited removal in federal court, which advocates claim is a necessary check on immigration officials to ensure that migrants with credible asylum claims aren’t erroneously turned away and have access to a full and fair hearing.

Until recently, only a small number of immigrants who had recently arrived in the US could be subjected to expedited removal. But President Donald Trump has sought to vastly expand US Immigration and Customs Enforcement’s power to use expedited removal as a means of deporting any immigrant who has lived in the US for up to two years, potentially affecting an estimated 20,000 people.

Thursday’s decision therefore allows Trump to significantly scale up his immigration enforcement apparatus while going largely unchecked.

“Trump has made it very clear that ICE has the authority to use this process throughout the entire country,” Kari Hong, a professor at Boston College Law School, said. “They could start stopping anyone at anytime on any suspicion that they have committed an immigration violation and deport them. I don’t think it’s unreasonable [to predict] that ICE agents will target dark-skinned individuals.”

. . . .

******************

Read the rest of Nicole’s clear and understandable analysis at the link.

Writing ability, intellectual honesty, commitment to Due Process, belief in equal justice for all, opposition to institutional racism, and fidelity to human values, as well as “real life” understanding of what it means to have your life and human dignity ground to mush in Trump’s illegal “deportation machine” obviously are in short supply among today’s Supremes. Disgraceful!

So, according to these seven cloistered dudes, somebody on trial for her or his life, the highest possible stakes in any proceeding in America, civil or criminal, can have her or his fate determined by Trump employees who serve as policeman, prosecutor, judge, jury, and executioner. No access to a “fair and impartial decision-maker” as required by the Constitution. No checks for errors, abuses, or mistakes that could result in a vulnerable individual being sent to face persecution, torture, and/or death in a land they fled because their life was in danger. This notwithstanding that Federal Courts find egregious errors in application of basic legal concepts from Trump’s immigration adjudicators almost every day! This is “due process” because Congress said it was! What complete deadly nonsense and sophistry! Really, how do the purveyors and enablers of such atrocious, disingenuous, and illegal attacks on humanity sleep at night.

Let’s be clear. There is no legitimate purpose in a supposedly independent, life-tenured judiciary without the courage to hold both the Executive and the Congress accountable for equal justice under law as required by our Constitution. If they are going to act like Border Patrol Agents in robes, send them down to the border and let them be part of the killing fields. Got innocent blood on your hands, might as well have it on your robes too! 

The formula is very simple: Better Executive + Better Legislators + Better Judges = Equal Justice For All. The exceptionally poor performance of the Supremes in insuring racial justice in America, indeed their intentional undermining of it in voting rights, civil rights, immigration, and other areas, is a major contributor to the continuing institutional racism that is on the verge of ripping our nation apart. The Supreme’s latest abrogation of the Constitution stokes racial injustice in America and endangers our nation’s security and future.

How many Hispanic American citizens will be illegally “expeditiously removed” to Mexico by DHS Enforcement before the nation wakes up! We need better judges! Judges who will stop intentionally ignoring the clear constitutional requirements for Due Process, Equal Justice, and ending institutionalized racism in America. Judges who will not feign ignorance of the grotesque human suffering they wrongfully enable. Judges who will stand up for the rule of  law against an overtly racist Executive. Judges who will stop enabling, participating in, and encouraging further “crimes against humanity!” 

Also, every Federal Judge should have 1) demonstrated legal and practical knowledge of human rights law and what really happens to individuals in our immigration “justice” system; and 2) a course in writing cogent English and applying simple logic from Nicole. 

This November, vote like your life and the future of our nation depend on it. Because they do!

Due Process Forever! Supremes that don’t believe in equal justice under law, never!

PWS

06-26-20

🏴‍☠️☠️AMERICAN JUSTICE FAILS: SUPREMES SHAFT ASYLUM SEEKERS — Only Justices Sotomayor & Kagan Stand Up For Rule of Law, Human Rights, Rationality: “Today’s decision handcuffs the Judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers. It will leave significant exercises of executive discretion unchecked in the very circumstance where the writ’s protections ‘have been strongest.’ INS v. St. Cyr, 533 U. S. 289, 301 (2001). And it increases the risk of erroneous immigration decisions that contravene governing statutes and treaties.”—DEPARTMENT OF HOMELAND SECURITY ET AL. v. THURAISSIGIAM

☠️👎

DEPARTMENT OF HOMELAND SECURITY ET AL. v. THURAISSIGIAM, 06-25-48

https://www.supremecourt.gov/opinions/19pdf/19-161_g314.pdf

COUIRT SYLLABUS:

Syllabus

DEPARTMENT OF HOMELAND SECURITY ET AL. v. THURAISSIGIAM

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 19–161. Argued March 2, 2020—Decided June 25, 2020

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provides for the expedited removal of certain “applicants” seeking admission into the United States, whether at a designated port of entry or elsewhere. 8 U. S. C. §1225(a)(1). An applicant may avoid expedited removal by demonstrating to an asylum officer a “credible fear of persecution,” defined as “a significant possibility . . . that the alien could establish eligibility for asylum.” §1225(b)(1)(B)(v). An ap- plicant who makes this showing is entitled to “full consideration” of an asylum claim in a standard removal hearing. 8 CFR §208.30(f). An asylum officer’s rejection of a credible-fear claim is reviewed by a su- pervisor and may then be appealed to an immigration judge. §§208.30(e)(8), 1003.42(c), (d)(1). But IIRIRA limits the review that a federal court may conduct on a petition for a writ of habeas corpus. 8 U. S. C. §1252(e)(2). In particular, courts may not review “the deter- mination” that an applicant lacks a credible fear of persecution. §1252(a)(2)(A)(iii).

Respondent Vijayakumar Thuraissigiam is a Sri Lankan national who was stopped just 25 yards after crossing the southern border with- out inspection or an entry document. He was detained for expedited removal. An asylum officer rejected his credible-fear claim, a super- vising officer agreed, and an Immigration Judge affirmed. Respondent then filed a federal habeas petition, asserting for the first time a fear of persecution based on his Tamil ethnicity and political views and re- questing a new opportunity to apply for asylum. The District Court dismissed the petition, but the Ninth Circuit reversed, holding that, as applied here, §1252(e)(2) violates the Suspension Clause and the Due Process Clause.

2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

Syllabus

Held:

1. As applied here, §1252(e)(2) does not violate the Suspension

Clause. Pp. 11–33.

(a) The Suspension Clause provides that “[t]he Privilege of the

Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. This Court has held that, at a minimum, the Clause “protects the writ as it existed in 1789,” when the Constitution was adopted. INS v. St. Cyr, 533 U. S. 289, 301. Habeas has traditionally provided a means to seek release from unlawful detention. Respondent does not seek release from custody, but an additional opportunity to obtain asy- lum. His claims therefore fall outside the scope of the writ as it existed when the Constitution was adopted. Pp. 11–15.

(b) Respondent contends that three bodies of case law support his argument that the Suspension Clause guarantees a broader habeas right, but none do. Pp. 15–33.

(1) Respondent first points to British and American cases de- cided before or around the Constitution’s adoption. All those cases show is that habeas was used to seek release from detention in a vari- ety of circumstances. Respondent argues that some cases show aliens using habeas to remain in a country. But the relief ordered in those cases was simply release; an alien petitioner’s ability to remain in the country was due to immigration law, or lack thereof. The relief that a habeas court may order and the collateral consequences of that relief are two entirely different things. Pp. 15–23.

(2) Although respondent claims to rely on the writ as it existed in 1789, his argument focuses on this Court’s decisions during the “fi- nality era,” which takes its name from a feature of the Immigration Act of 1891 making certain immigration decisions “final.” In Nishi- mura Ekiu v. United States, 142 U. S. 651, the Court interpreted the Act to preclude judicial review only of questions of fact. Federal courts otherwise retained authority under the Habeas Corpus Act of 1867 to determine whether an alien was detained in violation of federal law. Thus, when aliens sought habeas relief during the finality era, the Court exercised habeas jurisdiction that was conferred by the habeas statute, not because it was required by the Suspension Clause—which the Court did not mention. Pp. 23–32.

(3) The Court’s more recent decisions in Boumediene v. Bush, 553 U. S. 723, and St. Cyr, 533 U. S. 289, also do not support respond- ent’s argument. Boumediene was not about immigration at all, and St. Cyr reaffirmed that the common-law habeas writ provided a vehicle to challenge detention and could be invoked by aliens already in the coun- try who were held in custody pending deportation. It did not approve respondent’s very different attempted use of the writ. Pp. 32–33.

Cite as: 591 U. S. ____ (2020) 3 Syllabus

2. As applied here, §1252(e)(2) does not violate the Due Process Clause. More than a century of precedent establishes that, for aliens seeking initial entry, “the decisions of executive or administrative of- ficers, acting within powers expressly conferred by Congress, are due process of law.” Nishimura Ekiu, 142 U. S., at 660. Respondent ar- gues that this rule does not apply to him because he succeeded in mak- ing it 25 yards into U. S. territory. But the rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil. An alien who is detained shortly after unlawful entry cannot be said to have “effected an entry.” Zadvydas v. Davis, 533 U. S. 678, 693. An alien in respondent’s position, therefore, has only those rights re- garding admission that Congress has provided by statute. In respond- ent’s case, Congress provided the right to a “determin[ation]” whether he had “a significant possibility” of “establish[ing] eligibility for asy- lum,” and he was given that right. §§1225(b)(1)(B)(ii), (v). Pp. 34–36.

917 F. 3d 1097, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., andTHOMAS,GORSUCH,andKAVANAUGH,JJ.,joined. THOMAS,J.,fileda concurring opinion. BREYER, J., filed an opinion concurring in the judg- ment, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined.

********************

A very sad, tragic moment for American Justice, as seven Justices turn their collective backs on Constitutional Due Process, international asylum protections, common sense, and human decency. 

It also shows their appalling intellectual dishonesty and/or lack of knowledge about how asylum seekers lives and human rights are being trashed by this Administration’s White Nationalist agenda. One could only hope that these seven Justices are someday “reincarnated” and condemned to being refugees seeking justice, mercy, and humanity from America in the “age of Trump.” Little wonder that Stephen Miller and his White Nationalist gang believe they will get away with eliminating asylum law under the guise of bogus “regulations” that eliminate eligibility for everyone who might need protection.

In the end, despite the denial of this tone-deaf judicial group, human rights are everyone’s rights and demeaning and disregarding them will come back to haunt and disfigure our nation and our world for generations to come.

The only part of this decision worth reading is the Sotomayor/Kagan dissent, which I set forth in full as a “marker” for future historians chronicling the “death of the Constitution and humanity in America” and the Supreme Court’s key enabling and encouraging role in “Dred Scottifying” and “dehumanizing” the other, largely along racial, ethnic, and religious lines. Sotomayor’s critique of her colleagues is correct.

The good news: The best way to solve Executive abuses is with a new and better Executive. Moreover, a future Administration and a better Congress could restore asylum and refugee laws and “re-codify due process rights as statutes” so that they would be enforced by courts, even the Supremes. The problem started with Congress. A wiser, better, and more humanitarian Congess could end it.

But, in the meantime, back in the grim real world of refugees and asylum seekers, many will die, be tortured, or otherwise harmed because of the Supremes’ willful blindness to the abuses and indignities being inflicted upon the most vulnerable with the aid and active assistance of our own Government. There is a name of that type of conduct.

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–161 _________________

DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v. VIJAYAKUMAR THURAISSIGIAM

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[June 25, 2020]

JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins, dissenting.

The majority declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas cor- pus, no matter whether the denial is arbitrary or irrational or contrary to governing law. That determination flouts over a century of this Court’s practice. In case after case, we have heard claims indistinguishable from those re- spondent raises here, which fall within the heartland of ha- beas jurisdiction going directly to the origins of the Great Writ.

The Court thus purges an entire class of legal challenges to executive detention from habeas review, circumscribing that foundational and “stable bulwark of our liberties,” 1 W. Blackstone, Commentaries 99 (Am. ed. 1832). By self-im- posing this limitation on habeas relief in the absence of a congressional suspension, the Court abdicates its constitu- tional duty and rejects precedent extending to the founda- tions of our common law.

Making matters worse, the Court holds that the Consti- tution’s due process protections do not extend to noncitizens like respondent, who challenge the procedures used to de- termine whether they may seek shelter in this country or

2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

whether they may be cast to an unknown fate. The decision deprives them of any means to ensure the integrity of an expedited removal order, an order which, the Court has just held, is not subject to any meaningful judicial oversight as to its substance. In doing so, the Court upends settled con- stitutional law and paves the way toward transforming al- ready summary expedited removal proceedings into arbi- trary administrative adjudications.

Today’s decision handcuffs the Judiciary’s ability to per- form its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers. It will leave significant exercises of executive dis- cretion unchecked in the very circumstance where the writ’s protections “have been strongest.” INS v. St. Cyr, 533 U. S. 289, 301 (2001). And it increases the risk of erroneous immigration decisions that contravene governing statutes and treaties.

The Court appears to justify its decision by adverting to the burdens of affording robust judicial review of asylum decisions. But our constitutional protections should not hinge on the vicissitudes of the political climate or bend to accommodate burdens on the Judiciary. I respectfully dis- sent.

I

The as-applied challenge here largely turns on how the Court construes respondent’s requests for relief. Its de- scriptions, as well as those of one of the concurrences, skew the essence of these claims. A proper reframing thus is in order.

A

Respondent first advances a straightforward legal ques- tion that courts have heard in habeas corpus proceedings in “case after case.” Id., at 306. His habeas petition claimed that an asylum officer and Immigration Judge “appl[ied] an

Cite as: 591 U. S. ____ (2020) 3

SOTOMAYOR, J., dissenting

incorrect legal standard” by ordering him removed despite a showing of a significant possibility of credible fear to es- tablish “eligibility for asylum, withholding of removal, and [Convention Against Torture] claims.” App. 31–32; see also 8 U. S. C. §1225(b)(1)(B)(v) (setting standard for credible fear as “a significant possibility, taking into account the . . . statements made by the alien . . . and such other facts as are known to the officer, that the alien could establish eli- gibility for asylum”). The Government itself has character- ized that claim as a challenge to the “ ‘application of a legal standard to factual determinations . . . underlying the Ex- ecutive’snegativecredible-fearfindings.’” 917F.3d1097, 1117, n. 20 (CA9 2019) (case below). At bottom, respondent alleged that he was unlawfully denied admission under gov- erning asylum statutes and regulations.

The Court disagrees, flattening respondent’s claim into a mere plea “ultimately to obtain authorization to stay in this country.” Ante, at 2; see also ante, at 12 (describing the re- quest as a “right to enter or remain in a country”); ante, at 13, n. 14 (framing relief sought as “gaining a right to remain in this country”); ante, at 16 (equating relief with “authori- zation . . . to remain in a country other than his own”). Yet while the Court repeatedly says that respondent seeks nothing more than admission as a matter of grace, its own descriptions of respondent’s habeas petition belie its asser- tions. See, e.g., ante, at 5, n. 5 (“[T]he gravamen of his pe- tition is that [respondent] faces persecution in Sri Lanka ‘because of’ his Tamil ethnicity and political opinions”); ibid. (suggesting that the same persecution inquiry governs respondent’s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment claim); ante, at 36, n. 28 (observing that respondent’s habeas peti- tion contains factual allegations that resemble documented persecution on the basis of ethnicity or political opinion). Though the Court refuses to admit as much, its descriptions of respondent’s arguments illustrate, at bottom, claims that

4 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

immigration officials legally erred in their review of his asy- lum application.

In papering over the true nature of respondent’s claims, the Court transforms his assertions of legal error in the ex- ercise of executive discretion into a naked demand for exec- utive action. But the distinction between those forms of re- lief makes all the difference. The law has long permitted habeas petitioners to challenge the legality of the exercise of executive power, even if the executive action ultimately sought is discretionary. See St. Cyr, 533 U. S., at 307 (citing cases). That principle has even more force today, where an entire scheme of statutes and regulations cabins the Exec- utive’s discretion in evaluating asylum applications. For that reason, the Court’s observation that the ultimate “grant of asylum is discretionary” is beside the point. Ante, at 5, n. 4.

For its part, one concurring opinion seems to acknowledge that claims that assert something other than pure factual error may constitutionally require some judi- cial review. Ante, at 3–5 (BREYER, J., concurring in judg- ment). It simply determines that respondent’s credible-fear claims amount to nothing more than a “disagreement with immigration officials’ findings about the two brute facts un- derlying their credible-fear determination,” namely, the identity of his attackers and their motivations. Ante, at 5. It also faults respondent for failing to develop his claims of legal error with citations “indicating that immigration offi- cials misidentified or misunderstood the proper legal stand- ard” or that they “disregarded” or were not properly trained in identifying relevant country conditions. Ante, at 5–6.

But the essence of respondent’s petition is that the facts as presented (that he, a Tamil minority in Sri Lanka, was abducted by unidentified men in a van and severely beaten), when considered in light of known country condi- tions (as required by statute), amount at least to a “signifi- cant possibility” that he could show a well-founded fear of

Cite as: 591 U. S. ____ (2020) 5

SOTOMAYOR, J., dissenting

persecution. So viewed, respondent’s challenge does not quibble with historic facts, but rather claims that those “settled facts satisfy a legal standard,” which this Court has held amounts to a “legal inquiry.” Guerrero-Lasprilla v. Barr, 589 U. S. ___, ___ (2020) (slip op., at 4). The concur- ring opinion suggests that any conclusions drawn from the discrete settled facts here could not be “so egregiously wrong” as to amount to legal error. Ante, at 6. But the ul- timate inquiry is simply whether the facts presented satisfy a statutory standard. While this concurring opinion may believe that the facts presented here do not show that re- spondent is entitled to relief, its view of the merits does not alter the legal nature of respondent’s challenge.

B

Second, respondent contended that the inadequate proce- dures afforded to him in his removal proceedings violated constitutional due process. Among other things, he as- serted that the removal proceedings by design did not pro- vide him a meaningful opportunity to establish his claims, that the translator and asylum officer misunderstood him, and that he was not given a “reasoned explanation” for the decision. App. 27, 32; see also id., at 32 (arguing that “[u]nder constitutionally adequate procedures, [respond- ent] would have prevailed on his claims”). Again, however, the Court falls short of capturing the procedural relief ac- tually requested. The Court vaguely suggests that respond- ent merely wanted more cracks at obtaining review of his asylum claims, not that he wanted to challenge the existing expedited removal framework or the process actually ren- dered in his case as constitutionally inadequate. See ante, at 2 (characterizing respondent as asking for “additional administrative review of his asylum claim”); see also ante, at 5, n. 5 (describing petition as seeking “another oppor- tunity to apply for asylum”). That misconstrues respond-

6 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

ent’s procedural challenges to the expedited removal pro- ceedings, which matters crucially; a constitutional chal- lenge to executive detention is just the sort of claim the com- mon law has long recognized as cognizable in habeas. See generally Part II, infra.

One concurring opinion, meanwhile, properly character- izes respondent’s claims on this score as “procedural” chal- lenges. Ante, at 7 (opinion of BREYER, J.). Yet it concludes that those claims are not reviewable because they do not allege sufficiently serious defects. See ante, at 7–8 (describ- ing cognizable claims as those involving “ ‘no [factual] find- ing[s],’” contentions that officials “skipped a layer of intra- agency review altogether,” the “outright denial (or construc- tive denial) of a process,” or an official’s “fail[ure] entirely to take obligatory procedural steps”). But these are simply distinctions of degree, not of kind. Respondent claimed that officials violated governing asylum regulations and de- prived him of due process by conducting an inadequate in- terview and providing incomplete translation services. It is difficult to see the difference between those claims and the ones that the concurring opinion upholds as cognizable. Cf. ante, at 7–8 (finding cognizable claims that an official “short-circuit[ed] altogether legally prescribed adjudication procedures by ‘dictating’ an immigration decision” and that an official deprived a noncitizen of “ ‘an opportunity to prove his right to enter the country, as the statute meant that he should have’”).

Indeed, the concurring opinion notes that the core ques- tion is whether a defect “fundamentally undermined the ef- ficacy of process prescribed by law.” Ante, at 7. Respond- ent’s petition plainly posits procedural defects that violate, or at least call into question, the “efficacy of process pre- scribed by law” and the Constitution. Ibid. The concurring opinion might think that respondent is not entitled to addi- tional protections as a matter of law or that the facts do not show he was denied any required process. But conclusions

Cite as: 591 U. S. ____ (2020) 7

SOTOMAYOR, J., dissenting

about the merits of respondent’s procedural challenges should not foreclose his ability to bring them in the first place.

C

Finally, the Court asserts that respondent did not specif- ically seek “release” from custody in what the Court styles as the “traditional” sense of the term as understood in ha- beas jurisprudence. Ante, at 10, 13; cf. ante, at 14 (suggest- ing that respondent “does not claim an entitlement to re- lease”). Instead, the Court seems to argue that respondent seeks only a peculiar form of release: admission into the United States or additional asylum procedures that would allow for admission into the United States. Such a request, the Court implies, is more akin to mandamus and injunc- tive relief. Ante, at 13.

But it is the Court’s directionality requirement that bucks tradition. Respondent asks merely to be freed from wrongful executive custody. He asserts that he has a cred- ible fear of persecution, and asylum statutes authorize him to remain in the country if he does. That request is indis- tinguishable from, and no less “traditional” than, those long made by noncitizens challenging restraints that prevented them from otherwise entering or remaining in a country not their own. See Part II–B–1, infra.

The Court has also never described “release” as the sole remedy of the Great Writ. Nevertheless, respondent’s peti- tion is not limited in the way the Court claims. As it acknowledges, ante, at 10, respondent directly asked the District Court to “[i]ssue a writ of habeas corpus” without further limitation on the kind of relief that might entail, App. 33. Respondent also sought “an [o]rder directing [the Government] to show cause why the writ should not be granted” and an order “directing [the Government] to va- cate the expedited removal order entered against [him].” Ibid. As the petition’s plain language indicates, respondent

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raised a garden-variety plea for habeas relief in whatever form available and appropriate, including, but not limited to, release.

***

Fairly characterized, respondent’s claims allege legal er- ror (for violations of governing asylum law and for viola- tions of procedural due process) and an open-ended request for habeas relief. It is “uncontroversial” that the writ en- compasses such claims. See Boumediene v. Bush, 553 U. S. 723, 779 (2008) (concluding that release is but one form of relief available); see also St. Cyr., 533 U. S., at 302, 304– 308 (citing cases predating the founding to show that the writ could challenge “the erroneous application or interpre- tation” of relevant law); see also Part II–D, infra.

II

Only by recasting respondent’s claims and precedents does the Court reach its decision on the merits. By its ac- count, none of our governing cases, recent or centuries old, recognize that the Suspension Clause guards a habeas right to the type of release that respondent allegedly seeks.1

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1 The Court wisely declines to explore whether the Suspension Clause

independently guarantees the availability of the writ or simply restricts the temporary withholding of its operation, a point of disagreement be- tween the majority and dissent in INS v. St. Cyr, 533 U. S. 289 (2001). Ante, at 11, n. 12. Justice Scalia, dissenting in St. Cyr, wrote that the Suspension Clause “does not guarantee any content to (or even the exist- ence of ) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended.” 533 U. S., at 337. But no majority of this Court, at any time, has adopted that theory. Notably, moreover, even Justice Scalia appears to have abandoned his position just three years later in Hamdi v. Rumsfeld, 542 U. S. 507, 555– 556 (2004) (dissenting opinion) (“The two ideas central to Blackstone’s understanding—due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned—found expression in the Constitution’s Due Process and Suspension Clauses”); see also id., at 558 (“The writ of habeas corpus

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Ante, at 13, n. 14 (finding no evidence that the writ was un- derstood in 1789 to grant relief that would amount to “gain- ing a right to remain in this country”); ante, at 13 (charac- terizing a “‘meaningful opportunity’” for review of asylum claims as falling outside of traditional notions of release from custody). An overview of cases starting from the colo- nial period to the present reveals that the Court is incor- rect, even accepting its improper framing of respondent’s claims.

A

The critical inquiry, the Court contends, is whether re- spondent’s specific requests for relief (namely, admission into the United States or additional asylum procedures al- lowing for admission into the United States) fall within the scope of the kind of release afforded by the writ as it existed in 1789. Ante, at 11, 12; see also ante, at 10 (criticizing the court below for holding §1252(e)(2) unconstitutional “with- out citing any pre-1789 case about the scope of the writ”). This scope, it explains, is what the Suspension Clause pro- tects “at a minimum.” Ante, at 11. But as the Court implic- itly acknowledges, its inquiry is impossible. The inquiry also runs headlong into precedent, which has never de- manded the kind of precise factual match with pre-1789 case law that today’s Court demands.

To start, the Court recognizes the pitfalls of relying on pre-1789 cases to establish principles relevant to immigra- tion and asylum: “At the time, England had nothing like modern immigration restrictions.” Ante, at 18–19 (“As late as 1816, the word ‘deportation’ apparently ‘was not to be found in any English dictionary’”). It notes, too, that our

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was preserved in the Constitution—the only common-law writ to be ex- plicitly mentioned”). Even one concurring opinion seems to recognize that the Suspension Clause “protect[s] a substantive right.” Ante, at 3– 4 (opinion of THOMAS, J.).

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cases have repeatedly observed the relative novelty of im- migration laws in the early days of this country. Ante, at 20 (citing Harisiades v. Shaughnessy, 342 U. S. 580, 588, n. 15 (1952) (“An open door to the immigrant was the early federal policy”); St. Cyr, 533 U. S., at 305 (remarking that the first immigration regulation was enacted in 1875)); see also Demore v. Kim, 538 U. S. 510, 539 (2003) (O’Connor, J., concurring in part and concurring in judgment) (“Because colonial America imposed few restrictions on immigration, there is little case law prior to that time about the availa- bility of habeas review to challenge temporary detention pending exclusion or deportation”).

The Court nevertheless seems to require respondent to engage in an exercise in futility. It demands that respond- ent unearth cases predating comprehensive federal immi- gration regulation showing that noncitizens obtained re- lease from federal custody onto national soil. But no federal statutes at that time spoke to the permissibility of their en- try in the first instance; the United States lacked a compre- hensive asylum regime until the latter half of the 20th cen- tury. Despite the limitations inherent in this exercise, the Court appears to insist on a wealth of cases mirroring the precise relief requested at a granular level; nothing short of that, in the Court’s view, would demonstrate that a noncit- izen in respondent’s position is entitled to the writ. See ante, at 18, n. 18 (dismissing respondent’s cited cases on the ground that “[w]hether the founding generation understood habeas relief more broadly than described by Blackstone, Justice Story, and our prior cases . . . cannot be settled by a single case or even a few obscure and possibly aberrant cases”); see also Neuman, Habeas Corpus, Executive Deten- tion, and the Removal of Aliens, 98 Colum. L. Rev. 961 (1998) (noting the inherent difficulties of a strict originalist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding).

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But this Court has never rigidly demanded a one-to-one match between a habeas petition and a common-law habeas analog. In St. Cyr, for example, the Court considered whether a noncitizen with a controlled substance conviction could challenge on habeas the denial of a discretionary waiver of his deportation order. 533 U. S., at 293. In doing so, the Court did not search high and low for founding-era parallels to waivers of deportation for criminal noncitizens. It simply asked, at a far more general level, whether habeas jurisdiction was historically “invoked on behalf of nonciti- zens . . . in the immigration context” to “challenge Execu- tive . . . detention in civil cases.” Id., at 302, 305. That in- cluded determining whether “[h]abeas courts . . . answered questions of law that arose in the context of discretionary relief ” (including questions regarding the allegedly “erro- neous application or interpretation of statutes”). Id., at 302, and n. 18, 307.

Boumediene is even clearer that the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent. There, the Court concluded that the writ applied to noncitizen detainees held in Guantanamo, 553 U. S., at 771, despite frankly admit- ting that a “[d]iligent search by all parties reveal[ed] no cer- tain conclusions” about the relevant scope of the common- law writ in 1789, id., at 746. Indeed, the Court reasoned that none of the cited cases illustrated whether a “common- law court would or would not have granted . . . a petition for a writ of habeas corpus” like that brought by the noncitizen- detainee petitioners, and candidly acknowledged that “the common-law courts simply may not have confronted cases with close parallels.” Id., at 746, 752. But crucially, the Court declined to “infer too much, one way or the other, from the lack of historical evidence on point.” Id., at 752. Instead, it sought to find comparable common-law habeas cases by “analogy.” Id., at 748–752.

There is no squaring the Court’s methodology today with

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St. Cyr or Boumediene. As those cases show, requiring near-complete equivalence between common-law habeas cases and respondent’s habeas claim is out of step with this Court’s longstanding approach in immigration cases.

B 1

Applying the correct (and commonsense) approach to de- fining the Great Writ’s historic scope reveals that respond- ent’s claims have long been recognized in habeas.

Respondent cites Somerset v. Stewart, Lofft. 1, 98 Eng. Rep. 499 (K. B. 1772), as an example on point. There, Lord Mansfield issued a writ ordering release of a slave bound for Jamaica, holding that there was no basis in English law for “sending . . . him over” to another country. Id., at 17– 19, 98 Eng. Rep., at 509–510. Thus, the writ issued even though it “did not free [the] slave so much as it protected him from deportation.” P. Halliday, Habeas Corpus: From England to Empire 175 (2010). Somerset establishes the longstanding availability of the writ to challenge the legal- ity of removal and to secure release into a country in which a petitioner sought shelter. Scholarly discussions of Mur- ray’s Case suggest much of the same. There, the King’s Bench granted habeas to allow a nonnative to remain in England and to prevent his removal to Scotland for trial. Halliday, Habeas Corpus, at 236.

The Court dismisses these examples outright. It acknowledges that the petitioner in Somerset may have been allowed to remain in England because of his release on habeas, yet declares that this was “due not to the wri[t] ordering [his] release” but rather to the existing state of the law. Ante, at 20. But the writ clearly did more than permit the petitioner to disembark from a vessel; it prevented him from being “sen[t] . . . over” to Jamaica. Lofft., at 17, 98 Eng. Rep., at 509. What England’s immigration laws might have prescribed after the writ’s issuance did not bear on the

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availability of the writ as a means to remain in the country in the first instance.

The Court also casts aside the facts of Murray’s Case, even though they, too, reveal that habeas was used to per- mit a nonnative detainee to remain in a country. Ante, at 18, n. 18. The Court minimizes the decision as “obscure and possibly aberrant.” Ibid. But given the relative paucity of habeas cases from this era, it is telling that the case serves as another example of the writ being used to allow a noncit- izen to remain in England.2

The reasoning of Somerset and Murray’s Case carried over to the Colonies, where colonial governments presumed habeas available to noncitizens to secure their residence in a territory. See generally Oldham & Wishnie, The Histori- cal Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Im- migration L. J. 485 (2002). For example, in 1755, British authorities sought to deport French Acadian settlers from Nova Scotia, then under the control of Great Britain, to the American Colonies. Id., at 497. The Governor and Assem- bly of South Carolina resisted the migrants’ arrival and de- tained them in ships off the coast of Charleston. They rec- ognized, however, that the exclusion could not persist because the migrants would be entitled to avail themselves of habeas corpus. Id., at 498. Ultimately, the Governor re- leased most of the Acadian migrants for resettlement throughout the Colony. Ibid.

Founding era courts accepted this view of the writ’s scope. Rather than credit these decisions, the Court marches

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2 The Court notes “the ‘delicate’ relationship between England and

Scotland at the time” of Murray’s Case. Ante, at 18, n. 18. Interestingly, the Court does not mention the delicate nature of the relationship be- tween the United States and Iraq in Munaf v. Geren, 553 U. S. 674 (2008), the centerpiece of the Court’s argument, even though that case arose during a military conflict. Ante, at 14–15. Nor does it acknowledge the impact that the relationship had on the Munaf Court’s decision to refrain from issuing the writ. See Part II–B–3, infra.

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through an assorted selection of cases and throws up its hands, contending that the case law merely reflects a wide range of circumstances for which individuals were deprived of their liberty. See ante, at 16–17. Thus, the Court con- cludes, the common law simply did not speak to whether individuals could seek “release” that would allow them to enter a country (as opposed to being expelled from it).

At the same time, notwithstanding its professed keen in- terest in precedent, the Court seems to discount decisions supporting respondent’s view that habeas permitted re- lease from custody into the country. At least two other clas- ses of cases demonstrate that the writ was available from around the founding onward to noncitizens who were de- tained, and wanted to remain, including those who were prevented from entering the United States at all.

First, common-law courts historically granted the writ to discharge deserting foreign sailors found and imprisoned in the United States. In Commonwealth v. Holloway, 1 Serg. & Rawle 392 (1815), the Pennsylvania Supreme Court granted a writ of habeas corpus to a Danish sailor who had deserted his vessel in violation of both an employment con- tract and Danish law. The court explained that the deser- tion did not violate any domestic law or treaty, and thus imprisonment was inappropriate. Id., at 396 (opinion of Tilghman, C. J.). By ordering an unconditional discharge and declining to return the noncitizen sailor to the custody of any foreign power, the court used the writ to order a re- lease that authorized a noncitizen to remain in the United States, a country “other than his own.” Ante, at 16. The same was true in similar cases that even the Court cites. See ante, at 19 (citing Case of the Deserters from the British Frigate L’Africaine, 3 Am. L. J. & Misc. Repertory 132 (Md. 1810) (reporting on a decision discharging deserters); Case of Hippolyte Dumas, 2 Am. L. J. & Misc. Repertory 86 (Pa. 1809) (same)).

Curiously, the Court does not contest that the writs in

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these cases were used to secure the liberty of foreign sailors, and consequently their right to enter the country.3 Rather, it remarks that judges at the time “chafed at having to or- der even release,” ante, at 19, which some saw as incon- sistent with principles of comity, Holloway, 1 Serg. & Rawle, at 394. But reluctance is not inability. That those judges followed the law’s dictates despite their distaste for the result should give today’s Court pause.

The Court seizes on one case where a court ordered a de- serting sailor to be returned to his foreign vessel-master. See ante, at 14, 19 (citing Ex parte D’Olivera, 7 F. Cas. 853, 854 (No. 3,967) (CC Mass. 1813)). But it reads too much into this one decision. In D’Olivera, the court held that de- serting sailors were unlawfully confined and granted a writ of habeas corpus, but directed that they be discharged to their vessel-master out of “a desire not to encourage deser- tion among foreign seamen.” Id., at 854. As illustrated by other deserter cases supra, the kind of results-oriented de- cisionmaking in D’Olivera does not seem to be the norm. The Court’s proclamation about how the scope of common- law habeas cannot hinge on a “single case” should have equal force here. Ante, at 18, n. 18.

Next, courts routinely granted the writ to release wrong- fully detained noncitizens into Territories other than the detainees’ “own.” Many involved the release of fugitive or former slaves outside their home State. In these cases, courts decided legal questions as to the status of these peti- tioners. In Arabas v. Ivers, 1 Root 92 (Conn. Super. Ct. 1784), for example, a Connecticut court determined that a former slave from New York held in local jail on his alleged master’s instructions had, in fact, been freed through his service in the Continental Army. The court ordered him

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3 Indeed, the Court highlights a striking similarity to the present asy-

lum challenge by observing that the foreign-deserter cases show the “use of habeas to secure release from custody when not in compliance with . . . statute[s] and relevant treaties.” Ante, at 21.

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discharged “upon the ground that he was a freeman, abso- lutely manumitted from his master by enlisting and serving in the army.” Id., at 93. See also In re Belt, 7 N. Y. Leg. Obs. 80 (1848) (granting habeas to discharge an imprisoned fugitive slave whose owner did not timely apply for his re- turn to Maryland); In re Ralph, 1 Morris 1 (Iowa 1839) (dis- charging person from custody on the grounds that he was not a fugitive slave subject to return to Missouri when he had been allowed to travel to the Iowa Territory by his for- mer master); Commonwealth v. Holloway, 2 Serg. & Rawle 305 (Pa. 1816) (holding on habeas corpus that a child born in a free State to a slave was free); In re Richardson’s Case, 20 F. Cas. 703 (No. 11,778) (CC DC 1837) (ordering prisoner to be discharged in the District of Columbia because war- rant was insufficient to establish that he was a runaway slave from Maryland); Commonwealth v. Griffith, 19 Mass. 11 (1823) (contemplating that the status of a freeman seized in Massachusetts as an alleged fugitive from Virginia could be determined on habeas corpus).

The weight of historical evidence demonstrates that com- mon-law courts at and near the founding granted habeas to noncitizen detainees to enter Territories not considered their own, and thus ordered the kind of release that the Court claims falls outside the purview of the common-law writ.

The Court argues that none of this evidence is persuasive because the writ could not be used to compel authorization to enter the United States. Ante, at 20. But that analogy is inapt. Perhaps if respondent here sought to use the writ to grant naturalization, the comparison would be closer. But respondent sought only the proper interpretation and application of asylum law (which statutorily permits him to remain if he shows a credible fear of persecution), or in the alternative, release pursuant to the writ (despite being cog- nizant that he could be denied asylum or rearrested upon release if he were found within the country without legal

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authorization). But that consequence does not deprive re- spondent of the ability to invoke the writ in the first in- stance. See, e.g., Lewis v. Fullerton, 22 Va. 15 (1821) (af- firming that a judgment on habeas corpus in favor of a slave was not conclusive of her rights but merely permitted re- lease from custody on the record before the court and did not prohibit recapture by a master); Ralph, 1 Morris, at 1 (noting that an adjudication that petitioner was not a fugi- tive only exempted him from fugitive-slave laws but did not prohibit master from entering Territory to reclaim him on his own accord).

For these reasons, the Court is wrong to dispute that com- mon-law habeas practice encompassed the kind of release respondent seeks here.

2

The Court also appears to contend that respondent sought merely additional procedures in his habeas adjudi- cation and that this kind of relief does not fall within the traditional scope of the writ. That reflects a misunder- standing of the writ. Habeas courts regularly afforded the state additional opportunities to show that a detention was lawful before ordering what the Court now considers a re- lease outright.

The common-law writ of habeas corpus ad subjiciendum evolved into what we know and hail as the “Great Writ.” See 3 W. Blackstone, Commentaries on the Laws of Eng- land 131 (1768). That writ, at bottom, allowed a court to elicit the cause for an individual’s imprisonment and to en- sure that he be released, granted bail, or promptly tried. See Oaks, Habeas Corpus in the States—1776–1865, 32 U. Chi. L. Rev. 243, 244 (1965). From its origins, the writ did not require immediate release, but contained procedures that would allow the state to proceed against a detainee. Under the English Habeas Corpus Act of 1679, jailers were ordered to make a “return” to a writ within a designated

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time period and certify the true causes of imprisonment. Id., at 252–253. Justices of the King’s Bench obtained re- turns that provided full legal accounts justifying detention. Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575, 599–600 (2008) (Halliday & White). They also examined and were guided by depositions upon which a de- tention was founded to determine whether to admit a peti- tioner to bail. Oaks, 32 U. Chi. L. Rev., at 258. Indeed, the King’s Bench routinely considered facts not asserted in the return to assist scrutiny of detentions. Halliday & White 610; see also id., at 611 (documenting instances where the court would consider affidavits of testimony beyond what was included in the return).

Moreover, early practice showed that common-law ha- beas courts routinely held proceedings to determine whether detainees should be discharged immediately or whether the state could subject them to further proceed- ings, including trial in compliance with proper procedures. See Ex parte Bollman, 4 Cranch 75, 125 (1807) (taking tes- timony in conjunction with an “inquiry” to determine whether “the accused shall be discharged or held to trial”). In Ex parte Kaine, 14 F. Cas. 78 (No. 7,597) (CC SDNY 1853), for example, a federal court analyzed whether a pe- titioner, who had been found guilty of an offense by a com- missioner, was subject to extradition. The court passed on questions of law concerning whether the commissioner had the power to adjudicate petitioner’s criminality. Id., at 80. Ultimately, the court found that petitioner was “entitled to be discharged from imprisonment” due to defects in the pro- ceedings before the commissioner, but entertained further evidence on whether he could nevertheless be extradited. Id., at 82. Only after finding no additional evidence that would permit extradition did the court order release. Ibid.

Similarly, in Coleman v. Tennessee, 97 U. S. 509 (1879), the petitioner had been convicted of a capital offense by a

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state court, even though he had committed the offense while a soldier in the United States Army. Id., at 510–511. This Court granted habeas on the grounds that the state- court judgment was void but, because the petitioner had also been found guilty of murder by a military court, never- theless turned the prisoner over to the custody of the mili- tary for appropriate punishment. Id., at 518–520. Not sur- prisingly, then, the Court has found that habeas courts may discharge detainees in a manner that would allow defects in a proceeding below to be corrected. In re Bonner, 151 U. S. 242, 261 (1894).

These examples confirm that outright habeas release was not always immediately awarded. But they also show that common-law courts understood that relief short of release, such as ordering officials to comply with the law and to cor- rect underlying errors, nevertheless fell within the scope of a request for habeas corpus.4

3

Despite exalting the value of pre-1789 precedent, the Court’s key rationale for why respondent does not seek “re- lease” in the so-called traditional sense rests on an inappo- site, contemporary case: Munaf v. Geren, 553 U. S. 674 (2008).5 Ante, at 14. Munaf, the Court claims, shows that

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4 The Court considers irrelevant cases demonstrating that the execu-

tive was permitted to cure defects in detention because “the legality of [respondent’s] detention is not in question” here. Ante, at 17; see also ante, at 32–33 (acknowledging that it is “often ‘appropriate’ to allow the executive to cure defects in a detention” in habeas cases (quoting Boumediene, 553 U. S., at 779)). But as explained in Part I–A, supra, that is exactly what respondent questions by arguing that his detention violated governing asylum law.

5 Oddly, the Court embraces Munaf—a recent decision involving de- tainees held outside the territorial limits of the United States who were subject to prosecution by a foreign sovereign—to support its conclusion about the availability of habeas review. Yet at the same time, it dis- misses respondent’s reliance on Boumediene v. Bush, 553 U. S. 723 (2008), outright on the grounds that the case is “not about immigration

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habeas is not available to seek an order to be brought into this country. Ante, at 14. But that case is in a category of its own and has no bearing on respondent’s claims here. Munaf addressed a one-of-a-kind scenario involving the transfer of individuals between different sovereigns. There, two United States citizens in Iraq filed habeas petitions seeking to block their transfer to Iraqi authorities after be- ing accused of committing crimes and detained by Ameri- can-led coalition forces pending investigation and prosecu- tion in Iraqi courts. 553 U. S., at 679–680, 692. The central question, this Court repeatedly stated, was “whether United States district courts may exercise their habeas ju- risdiction to enjoin our Armed Forces from transferring in- dividuals detained within another sovereign’s territory to that sovereign’s government for criminal prosecution.” Id., at 689; see also id., at 704.

In concluding that habeas did not extend to the relief sought by the citizens detained in Iraq, the Munaf Court relied on cases involving habeas petitions filed to avoid ex- tradition. Id., at 695–696 (citing Wilson v. Girard, 354 U. S. 524 (1957) (per curiam), and Neely v. Henkel, 180 U. S. 109 (1901)). These decisions, the Court concluded, established that American courts lack habeas jurisdiction to enjoin an extradition or similar transfer to a foreign sovereign exer- cising a right to prosecution. 553 U. S., at 696–697. These circumstances, which today’s Court overlooks, mean that Munaf is more like the extradition cases that the Court deems not “pertinent.” Ante, at 20.6

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at all.” Ante, at 32.

6 Nor is the Court correct in dismissing common-law extradition prec- edents as inapposite because they show “nothing more than the use of habeas to secure release from custody.” Ante, at 21. Indeed, these extra- dition cases demonstrate that the common-law writ encompassed exactly the kind of permission to remain in a country that the Court claims falls outside its scope. Ante, at 12, 14. In re Stupp, 23 F. Cas. 296 (No. 13,563) (CC SDNY 1875), which the Court cites in passing, emphatically af- firmed that habeas corpus was available to challenge detention pending

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In any event, respondent is not similarly situated to the petitioners in Munaf, who sought habeas to thwart removal from the United States in the face of a competing sover- eign’s interests. Mindful that the case implicated “sensitive foreign policy issues in the context of ongoing military op- erations,” the Munaf Court observed that granting habeas relief would “interfere with Iraq’s sovereign right to punish offenses against its laws committed within its borders.” 553 U. S., at 692 (internal quotation marks omitted); see also id., at 689, 694, 700. For that reason, it proceeded “‘with the circumspection appropriate when this Court is adjudi- cating issues inevitably entangled in the conduct of . . . in- ternational relations.’ ” Id., at 689, 692. Here, of course, no foreign sovereign is exercising a similar claim to custody over respondent during an ongoing conflict that would trig- ger the comity concerns that animated Munaf.

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extradition: “[T]he great purposes of the writ of habeas corpus can be maintained, as they must be. The court issuing the writ must inquire and adjudge whether the commissioner acquired jurisdiction . . . and had before him legal and competent evidence of facts whereon to pass judg- ment as to the fact of criminality, and did not arbitrarily commit the ac- cused for surrender.” Id., at 303. Although the Stupp court did not ulti- mately issue the writ, other courts have. See, e.g., Ex parte Kaine, 14 F. Cas. 78, 82 (No. 7,597) (CC SDNY 1853) (granting the writ to a pris- oner whose detention was “in consequence of illegality in the proceedings under the [extradition] treaty”); Pettit v. Walshe, 194 U. S. 205, 219–220 (1904) (affirming a grant of habeas where a prisoner’s detention violated the terms of an extradition treaty with Great Britain); In re Washburn, 4 Johns. Ch. 106, 114 (N. Y. 1819) (granting a habeas petition of a noncit- izen after a request for extradition); People v. Goodhue, 2 Johns. Ch. 198, 200 (N. Y. 1816) (releasing prisoner subject to possible interstate extra- dition). These extradition-related habeas cases show that the writ was undoubtedly used to grant release in the very direction—that is, away from a foreign country and into the United States—that the Court today derides. Indeed, the same scholar the Court cites makes the point that extradition specifically allowed courts to hear challenges to the Execu- tive’s ability to “detain aliens for removal to another country at the re- quest of [the] government.” Neuman, Habeas Corpus, Executive Deten- tion, and the Removal of Aliens, 98 Colum. L. Rev. 961, 1003 (1998).

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C

Next, the Court casually dismisses nearly 70 years of precedent from the finality era, the most relevant historic period for examining judicial review of immigration deci- sions. It concludes that, in case after case, this Court exer- cised habeas review over legal questions arising in immi- gration cases akin to those at issue here, not because the Constitution required it but only because a statute permit- ted it. Ante, at 23–24. That conclusion is both wrong in its own right and repeats arguments this Court rejected a half century ago when reviewing this same body of cases.

At the turn of the 20th century, immigration to the United States was relatively unrestricted. Public senti- ment, however, grew hostile toward many recent entrants, particularly migrant laborers from China. In response, Congress enacted the so-called Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58, which prohibited the entry of Chi- nese laborers to the United States. The Scott Act, ch. 1064, 25 Stat. 504, enacted in 1888, forbade reentry of Chinese laborers who had left after previously residing in this coun- try. Although immigration officials routinely denied entry to arriving migrants on the basis of these laws, many of these decisions were overturned by federal courts on habeas review. See, e.g., United States v. Jung Ah Lung, 124 U. S. 621 (1888).

This did not escape Congress’ attention. See Select Com- mittee on Immigration & Naturalization, H. R. Rep. No. 4048, 51st Cong., 2d Sess., 273–275 (1891) (documenting rate of reversal of immigration exclusion orders by Federal District Court in San Francisco). Congress responded by enacting the Immigration Act of 1891, which stripped fed- eral courts of their power to review immigration denials: “All decisions made by the inspection officers or their assis- tants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the

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superintendent of immigration, whose action shall be sub- ject to review by the Secretary of the Treasury.” Act of Mar. 3, 1891, §8, 26 Stat. 1085. By its terms, that restriction on federal judicial power was not limited to review of some un- defined subset of issues, such as questions of law or fact; it made executive immigration decisions final in all respects.

The Court, however, quickly construed the statute in Nishimura Ekiu v. United States, 142 U. S. 651 (1892) (Ekiu), to preclude only review of executive factfinding. Having so construed the statute, the Court in Ekiu, and in case after case following Ekiu, recognized the availability of habeas to review a range of legal and constitutional ques- tions arising in immigration decisions. The crucial question here is whether the finality-era Courts adopted that con- struction of jurisdiction-stripping statutes because it was simply the correct interpretation of the statute’s terms and nothing more or because that construction was constitu- tionally compelled to ensure the availability of habeas re- view. The better view is that Ekiu’s construction of the 1891 statute was constitutionally compelled.

In Ekiu, the Court recognized that a Japanese national was entitled to seek a writ of habeas corpus to review an exclusion decision issued almost immediately upon her ar- rival to the United States. As the Court notes, ante, at 26, the relevant issue in that case was whether the 1891 Act, “if construed as vesting . . . exclusive authority” in the Ex- ecutive to determine a noncitizen’s right to enter the United States, violated petitioner’s constitutional “right to the writ of habeas corpus, which carried with it the right to a deter- mination by the court as to the legality of her detention,” 142 U. S., at 656 (statement of the case). That is, the Ekiu Court confronted whether construing the 1891 Act as pre- cluding all judicial review of immigration decisions like the exclusion order at issue would violate the constitutional guarantee to habeas.

The Court answered that question by construing the 1891

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Act as precluding judicial review only of questions of fact. “An alien immigrant,” the Court first held, who is “pre- vented from landing [in the United States] by any [execu- tive] officer . . . and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.” Id., at 660. The Court then explained that it had authority to hear the case (de- spite Congress’ clear elimination of judicial review) because it interpreted the 1891 Act as meaning only that an immi- gration official’s determination of “facts” was final and un- reviewable. Ibid. (explaining that Congress could entrust the final determination of facts to executive officers).

After so articulating the 1891 Act’s limits on judicial re- view, the Court analyzed two challenges to the integrity of the proceedings, neither of which raised questions of histor- ical fact. See id., at 662–663 (considering whether immi- gration officer’s appointment was unconstitutional such that his actions were invalid); id., at 663 (determining whether proceedings were unlawful because the officer failed to take sworn testimony or make a record of the deci- sion).7 Although the Court ultimately concluded that those legal and constitutional challenges lacked merit, id., at 662–664, what matters is that the Court evaluated the ar- guments and recognized them as possible grounds for ha- beas relief.

What, then, can Ekiu tell us? Today’s Court finds signif- icant that the brief opinion makes no explicit mention of the Suspension Clause. Ante, at 28. This omission, it con- cludes, can only mean that the Ekiu Court did not think that (or had no occasion to consider whether) the Suspen- sion Clause “imposed any limitations on the authority of Congress to restrict the issuance of writs of habeas corpus

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7 These claims are uncannily reminiscent of the kinds of claims re-

spondent advances here. See Parts II–A and II–B, supra.

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in immigration matters.” Ante, at 27. According to this the- ory, Ekiu concluded that the plain terms of the1891 Act pro- hibited judicial review of executive factfinding alone, and nothing more can be said.

But this myopic interpretation ignores many salient facts. To start, the 1891 Act was enacted for the purpose of limiting all judicial review of immigration decisions, not just a subset of factual issues that may arise in those deci- sions. Further, the plain terms of the statute did not cabin the limitation on judicial review to historical facts found by an immigration officer. Ekiu, moreover, evaluated the Act’s constitutionality in view of the petitioner’s argument that the limitation on judicial review violated the constitutional “right to the writ of habeas corpus.” 142 U. S., at 656 (state- ment of the case). These considerations all point in one di- rection: Even if the Ekiu Court did not explicitly hold that the Suspension Clause prohibits Congress from broadly limiting all judicial review in immigration proceedings, it certainly decided the case in a manner that avoided raising this constitutional question. Indeed, faced with a jurisdic- tion-stripping statute, the only review left for the Ekiu Court was that required by the Constitution and, by exten- sion, protected by the guarantee of habeas corpus.

The Court also maintains that Ekiu concluded that “ ‘the act of 1891 is constitutional’” in full, not “only in part.” Ante, at 27 (quoting Ekiu, 142 U. S., at 664). Yet as the Court acknowledges, it was only “after interpreting the 1891 Act” as precluding judicial review of questions of fact alone that the Ekiu Court deemed it constitutional. Ante, at 26; see also Ekiu, 142 U. S., at 664 (concluding that “[t]he result” of its construction is that the 1891 Act “is constitu- tional”). That cannot mean that Ekiu found the 1891 Act constitutional even to the extent that it prevented all judi- cial review of immigration decisions, even those brought on habeas. What it can only mean, instead, is that Ekiu’s con-

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struction of the 1891 Act was an answer to the constitu- tional question posed by the case: whether and to what ex- tent denying judicial review under the 1891 Act would vio- late the constitutional “right to the writ of habeas corpus.” 142 U. S., at 656 (statement of the case).8

Bolstering this interpretation is that the Court has re- peatedly reached the same result when interpreting subse- quent statutes purporting to strip federal courts of all juris- diction over immigration decisions. In Gegiow v. Uhl, 239 U. S. 3 (1915), for example, the Court observed that Ekiu decided that “[t]he conclusiveness of the decisions of immi- gration officers under [the 1891 Act]” referred only to “con- clusiveness upon matters of fact.” 239 U. S., at 9. It relied heavily on Ekiu to support its determination that the Im- migration Act of 1907, 34 Stat. 898, which also rendered decisions of immigration officers to be “final,” §25, id., at 907, similarly only barred judicial review of questions of fact, 239 U. S., at 9. Indeed, time and again, against a back- drop of statutes purporting to bar all judicial review of ex- ecutive immigration decisions, this Court has entertained habeas petitions raising a host of issues other than historic facts found by immigration authorities.9

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8 The Court also claims that because Ekiu stated that the 1891 Act was

constitutional, respondent must be wrong that Ekiu found the 1891 Act “unconstitutional in most of its applications (i.e., to all questions other than questions of fact).” Ante, at 27. But the point here is not that Ekiu actually found the 1891 Act unconstitutional in part; it is that Ekiu in- terpreted the 1891 Act to avoid rendering it unconstitutional in part.

9 See, e.g., The Japanese Immigrant Case, 189 U. S. 86 (1903) (habeas petition filed by noncitizen alleged to have entered unlawfully and ap- prehended four days after being let on shore); Gonzales v. Williams, 192 U. S. 1 (1904) (habeas petition filed by resident of Puerto Rico detained at the port, who claimed that Puerto Rican nationals are United States citizens allowed to enter the mainland as a matter of course); United States ex rel. Turner v. Williams, 194 U. S. 279 (1904) (habeas petition by noncitizen found within the United States 10 days after entry alleging his arrest was unconstitutional); Chin Yow v. United States, 208 U. S. 8 (1908) (habeas petition filed by a Chinese individual with a claim of U. S.

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To be sure, this entrenched line of cases does not directly state that habeas review of immigration decisions is consti- tutionally compelled. But an alternate understanding of those cases rests on an assumption that is farfetched at best: that, year after year, and in case after case, this Court simply ignored the unambiguous texts of the serial Immi- gration Acts limiting judicial review altogether. The Court’s pattern of hearing habeas cases despite those stat- utes’ contrary mandate reflects that the Court understood habeas review in those cases as not statutorily permitted but constitutionally compelled.

In any event, we need not speculate now about whether the Ekiu Court, or the Courts that followed, had the consti- tutional right to habeas corpus in mind when they inter- preted jurisdiction-stripping statutes only to preclude re- view of historic facts. This Court has already identified which view is correct. In Heikkila v. Barber, 345 U. S. 229 (1953), the Court explained that Ekiu and its progeny had, in fact, construed the finality statutes to avoid serious con- stitutional questions about Congress’ ability to strip federal courts of their habeas power. As Heikkila reiterated, the key question in Ekiu (and in later cases analyzing finality statutes) was the extent to which the Constitution allowed Congress to make administrative decisions unreviewable. 345 U. S., at 234. And it concluded that the jurisdiction- stripping immigration statute in that case, a successor to

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citizenship who was detained on a steamship and prohibited from disem- barking); Yee Won v. White, 256 U. S. 399 (1921) (habeas petition filed on behalf of noncitizen wife and child denied admission to the United States upon arrival despite claiming legal right to join a family member residing in the country); Tod v. Waldman, 266 U. S. 113 (1924) (habeas petition by family fleeing religious persecution in Russia denied entry on the grounds that they were likely to become a public charge); United States ex rel. Polymeris v. Trudell, 284 U. S. 279 (1932) (habeas petition filed by residents of Greek ancestry who left the United States and sought reentry after a lengthy trip abroad).

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the 1891 Act, “preclud[ed] judicial intervention in deporta- tion cases except insofar as it was required by the Consti- tution.” Id., at 234–235.

Heikkila thus settles the matter; during the finality era, this Court either believed that the Constitution required ju- dicial review on habeas of constitutional and legal questions arising in immigration decisions or, at the very least, thought that there was a serious question about whether the Constitution so required. Although the Court tries to minimize that conclusion as not dispositive of the question presented, ante, at 29, such a conclusion undoubtedly weighs against finding §1252(e)(2) constitutional in spite of its broad prohibition on reviewing constitutional and legal questions.

The Court dismisses Heikkila and its explanation of the finality-era cases outright. It fixates on the fact that Heik- kila was not itself a habeas case and instead analyzed whether judicial review of immigration orders was availa- ble under the Administrative Procedure Act (APA). Ante, at 31–32. Heikkila’s discussion of the APA does not detract from its affirmation that when the language of a jurisdic- tion-stripping statute precludes all judicial review, the only review that is left is that required by the constitutional guarantee of habeas corpus. 345 U. S., at 235.10 Most im- portantly, Heikkila concluded that APA review was not equivalent to that judicial review. Second, the Court also

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10 Indeed, the Government itself embraced that position in a brief to

the Court during that time. Brief for Respondent in Martinez v. Neelly, O. T. 1952, No. 218, p. 19 (“The clear purpose of this [finality] provision was to preclude judicial review of the Attorney General’s decisions in al- ien deportation cases insofar as the Congress could do so under the Con- stitution”); id., at 33 (“[T]he courts have long recognized” the finality pro- visions “restric[t] review of deportation orders as far as the Constitution permits”); see also id., at 18 (explaining that the finality provisions “pre- cluded judicial review of deportation orders except for the collateral re- view in habeas corpus which the Constitution prescribes in cases of per- sonal detention”).

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states that Heikkila never interpreted Ekiu as having found the 1891 Act “partly unconstitutional.” Ante, at 32. But there was no need for the Ekiu Court to find the 1891 Act unconstitutional in part to construe it as prohibiting only review of historic facts. Instead, as Heikkila explained, Ekiu reached its decision by exercising constitutional avoid- ance.

By disregarding Heikkila, the Court ignores principles of stare decisis to stir up a settled debate. Cf. Ramos v. Loui- siana, 590 U. S. ___, ___, ___ (2020) (ALITO, J., dissenting) (slip op., at 1, 12). Perhaps its view is tinted by the fact that it doubts the Suspension Clause could limit Congress’ abil- ity to eliminate habeas jurisdiction at all. The Court scoffs at the notion that a limitation on judicial review would have been understood as an unconstitutional suspension of ha- beas, noting and distinguishing the limited number of occa- sions that this Court has found a suspension of the writ of habeas corpus. See ante, at 28–29; but see ante, at 7, n. 4 (THOMAS, J., concurring) (noting that historically, suspen- sions of habeas did not necessarily mention the availability of the writ). The references to those major historic mo- ments where this Court has identified a suspension only es- tablish the outer bounds of Congress’ suspension powers; it says nothing about whether, and to what extent, more lim- ited restrictions on judicial review might also be found un- constitutional.

Indeed, the Court acknowledges that some thought it an open question during the finality era whether the Suspen- sion Clause imposes limits on Congress’ ability to limit ju- dicial review. See ante, at 31, n. 25 (quoting Justice Brewer’s concurring opinion in United States ex rel. Turner v. Williams, 194 U. S. 279, 295 (1904), raising the question). That this question remained unsettled, see n. 1, supra, suf- fices to support the Court’s conclusion in Heikkila: The fi- nality-era Courts endeavored to construe jurisdiction-strip- ping statutes to avoid serious constitutional questions

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about the extent of congressional power to limit judicial re- view.

At bottom, the better view of the finality-era cases is that they understood the habeas right they sustained to be, or at least likely to be, constitutionally compelled. Certainly the cases do not establish the Court’s simplistic view to the con- trary: That the finality-era Court entertained habeas peti- tions only because no statute limited its ability to do so, and no Constitutional provision required otherwise. That read- ing of precedent disregards significant indications that this Court persistently construed immigration statutes strip- ping courts of judicial review to avoid depriving noncitizens of constitutional habeas guarantees. Ignoring how past courts wrestled with this issue may make it easier for the Court to announce that there is no unconstitutional suspen- sion today. But by sweeping aside most of our immigration history in service of its conclusion, the Court reopens a question that this Court put to rest decades ago, and now decides it differently. The cost of doing so is enormous. The Court, on its own volition, limits a constitutional protection so respected by our Founding Fathers that they forbade its suspension except in the direst of circumstances.

D

Not only does the Court cast to one side our finality-era jurisprudence, it skims over recent habeas precedent. Per- haps that is because these cases undermine today’s deci- sion. Indeed, both INS v. St. Cyr, 533 U. S. 289 (2001), and Boumediene v. Bush, 553 U. S. 723 (2008), instruct that eliminating judicial review of legal and constitutional ques- tions associated with executive detention, like the expe- dited-removal statute at issue here does, is unconstitu- tional.

The Court acknowledges St. Cyr’s holding but does not heed it. St. Cyr concluded that “‘[b]ecause of [the Suspen- sion] Clause some “judicial intervention in deportation

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cases” is unquestionably “required by the Constitution.”’” Ante, at 33 (quoting 533 U. S., at 300). This statement af- firms what the finality-era cases long suggested: that the Suspension Clause limits Congress’ power to restrict judi- cial review in immigration cases. Nor did St. Cyr arrive at this conclusion simply based on canons of statutory con- struction. The Court spoke of deeper historical principles, affirming repeatedly that “[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the le- gality of Executive detention, and it is in that context that its protections have been strongest.” Id., at 301; see also id., at 305 (“The writ of habeas corpus has always been available to review the legality of Executive detention”). The Court looked to founding era cases to establish that the scope of this guarantee extended to both the “interpreta- tion” and “application” of governing law, including law that guided the exercise of executive discretion. Id., at 302.

Based on that history, the Court also concluded that “a serious Suspension Clause issue would be presented” by precluding habeas review in the removal context, id., at 305, even where there was “no dispute” that the Govern- ment had the legal authority to detain a noncitizen like St. Cyr, id., at 303. Thus based on the same principles that the Court purports to apply in this case, the St. Cyr Court reached the opposite conclusion: The Suspension Clause likely prevents Congress from eliminating judicial review of discretionary executive action in the deportation context, even when the writ is used to challenge more than the fact of detention itself.

Boumediene reprised many of the rules articulated in St. Cyr. It first confirmed that the Suspension Clause applied to detainees held at Guantanamo Bay, repeating the “un- controversial” proposition that “the privilege of habeas cor- pus entitles” an executive detainee to a “meaningful oppor- tunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.”

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553 U. S., at 779 (quoting St. Cyr, 533 U. S., at 302). Then the Court detailed the writ’s remedial scope. It affirmed that one of the “easily identified attributes of any constitu- tionally adequate habeas corpus proceeding” is that “the ha- beas court must have the power to order the conditional re- lease of an individual unlawfully detained.” 553 U. S., at 779. Notably, the Court explained that release “need not be the exclusive remedy,” reasoning that “common-law habeas corpus was, above all, an adaptable remedy” whose “precise application and scope changed depending upon the circum- stances.” Ibid. (citing 3 W. Blackstone, Commentaries *131). The Court noted that any habeas remedy might be tempered based on the traditional test for procedural ade- quacy in the due process context and thus could accommo- date the “rigor of any earlier proceedings.” 553 U. S., at 781 (citing Mathews v. Eldridge, 424 U. S. 319, 335 (1976)).

The Court discounts these cases because it objects to the perceived direction of respondent’s requested release. Ante, at 32 (explaining that Boumediene did not suggest that the enemy combatant petitioners were entitled to enter the United States upon release). It similarly contends that re- spondent’s attempted use of the writ is “very different” from that at issue in St. Cyr. Ante, at 33.

Neither rejoinder is sound. St. Cyr and Boumediene con- firm that at minimum, the historic scope of the habeas power guaranteed judicial review of constitutional and le- gal challenges to executive action. They do not require re- lease as an exclusive remedy, let alone a particular direc- tion of release. Rather, both cases built on the legacy of the finality era where the Court, concerned about the constitu- tionality of limiting judicial review, unquestionably enter- tained habeas petitions from arriving migrants who raised the same types of questions respondent poses here. See, e.g., St. Cyr, 533 U. S., at 307 (citing United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954) (habeas case

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attacking the denial of an application for suspension of de- portation); see also id., at 268 (“[W]e object to the Board’s alleged failure to exercise its own discretion, contrary to ex- isting valid regulations” (emphasis deleted))).

As discussed above, respondent requests review of immi- gration officials’ allegedly unlawful interpretation of gov- erning asylum law, and seeks to test the constitutional ad- equacy of expedited removal procedures. As a remedy, he requests procedures affording a conditional release, but cer- tainly did not so limit his prayer for relief. His constitu- tional and legal challenges fall within the heartland of what St. Cyr said the common-law writ encompassed, and Boumediene confirms he is entitled to additional procedures as a form of conditional habeas relief. These precedents themselves resolve this case.

***

The Court wrongly declares that §1252(e)(2) can preclude habeas review of respondent’s constitutional and legal chal- lenges to his asylum proceedings. So too the Court errs in concluding that Congress need not provide a substitute mechanism to supply that review. In so holding, the Court manages to flout precedents governing habeas jurispru- dence from three separate eras. Each one shows that re- spondent is entitled to judicial review of his constitutional and legal claims. Because §1252(e)(2) excludes his chal- lenges from habeas proceedings, and because the INA does not otherwise provide for meaningful judicial review of the Executive’s removal determination, respondent has no ef- fective means of vindicating his right to habeas relief. Quite simply, the Constitution requires more.

III

Although the Court concludes that habeas relief is not available because of the particular kind of release that it

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thinks respondent requests, it also suggests that respond- ent’s unlawful status independently prohibits him from challenging the constitutionality of the expedited removal proceedings. By determining that respondent, a recent un- lawful entrant who was apprehended close in time and place to his unauthorized border crossing, has no proce- dural due process rights to vindicate through his habeas challenge, the Court unnecessarily addresses a constitu- tional question in a manner contrary to the text of the Con- stitution and to our precedents.

The Court stretches to reach the issue whether a noncit- izen like respondent is entitled to due process protections in relation to removal proceedings, which the court below mentioned only in a footnote and as an aside. See ante, at 34 (quoting 917 F. 3d, at 1111, n. 15). In so doing, the Court opines on a matter neither necessary to its holding nor se- riously in dispute below.11

The Court is no more correct on the merits. To be sure, our cases have long held that foreigners who had never come into the United States—those “on the threshold of in- itial entry”—are not entitled to any due process with re- spect to their admission. Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206, 212 (1953) (citing Ekiu, 142 U. S., at 660); see also Landon v. Plasencia, 459 U. S. 21, 32 (1982). That follows from this Courts’ holdings that the po- litical branches of Government have “plenary” sovereign power over regulating the admission of noncitizens to the United States. Ante, at 35; see also Ekiu, 142 U. S., at 659.

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11 While the Court contends that the writ of habeas corpus does not

allow an individual to “obtain administrative review” or additional pro- cedures, it arrives at this conclusion only in the context of discussing what sorts of “relief ” properly qualified as release from custody at com- mon law. Ante, at 2, 14–16 (contrasting request for additional remedies with a “simple” release from custody). To the extent that this discussion necessarily prohibits federal courts from entertaining habeas petitions alleging due process violations in expedited removal proceedings, the Court’s separate discussion in Part IV is unnecessary.

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Noncitizens in this country, however, undeniably have due process rights. In Yick Wo v. Hopkins, 118 U. S. 356 (1886), the Court explained that “[t]he Fourteenth Amend- ment to the Constitution is not confined to the protection of citizens” but rather applies “to all persons within the terri- torial jurisdiction, without regard to any differences of race, of color, or of nationality.” Id., at 369; Zadvydas v. Davis, 533 U. S. 678, 693 (2001) (reiterating that “once an alien enters the country,” he is entitled to due process in his re- moval proceedings because “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”).

In its early cases, the Court speculated whether a noncit- izen could invoke due process protections when he entered the country without permission or had resided here for too brief a period to “have become, in any real sense, a part of our population.” The Japanese Immigrant Case, 189 U. S. 86, 100 (1903); see also ante, at 34 (quoting Ekiu, 142 U. S., at 660 (remarking that for those not “‘admitted into the country pursuant to law,’” the procedures afforded by the political branches are all that are due)). But the Court has since determined that presence in the country is the touch- stone for at least some level of due process protections. See Mezei, 345 U. S., at 212 (explaining that “aliens who have once passed through our gates, even illegally,” possess con- stitutional rights); Mathews v. Diaz, 426 U. S. 67, 77 (1976) (“There are literally millions of aliens within the jurisdic- tion of the United States. The Fifth Amendment . . . pro- tects every one of these persons . . . . Even one whose pres- ence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection”). As a nonciti- zen within the territory of the United States, respondent is entitled to invoke the protections of the Due Process Clause.

In order to reach a contrary conclusion, the Court as- sumes that those who do not enter the country legally have

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the same due process rights as those who do not enter the country at all. The Court deems that respondent possesses only the rights of noncitizens on the “threshold of initial en- try,” skirting binding precedent by assuming that individu- als like respondent have “ ‘assimilated to [the] status’ ” of an arriving noncitizen for purposes of the constitutional anal- ysis. Mezei, 345 U. S., at 212, 214. But that relies on a legal fiction. Respondent, of course, was actually within the ter- ritorial limits of the United States.

More broadly, by drawing the line for due process at legal admission rather than physical entry, the Court tethers constitutional protections to a noncitizen’s legal status as determined under contemporary asylum and immigration law. But the Fifth Amendment, which of course long pre- dated any admissions program, does not contain limits based on immigration status or duration in the country: It applies to “persons” without qualification. Yick Wo, 118 U. S., at 369. The Court has repeatedly affirmed as much long after Congress began regulating entry to the country. Mathews, 426 U. S., at 77; Zadvydas, 533 U. S., at 693–694. The Court lacks any textual basis to craft an exception to this rule, let alone one hinging on dynamic immigration laws that may be amended at any time, to redefine when an “entry” occurs. Fundamentally, it is out of step with how this Court has conceived the scope of the Due Process Clause for over a century: Congressional policy in the im- migration context does not dictate the scope of the Consti- tution.

In addition to creating an atextual gap in the Constitu- tion’s coverage, the Court’s rule lacks any limiting princi- ple. This is not because our case law does not supply one. After all, this Court has long affirmed that noncitizens have due process protections in proceedings to remove them from the country once they have entered. See id., at 693–694; Mezei, 345 U. S., at 212.

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Perhaps recognizing the tension between its opinion to- day and those cases, the Court cabins its holding to individ- uals who are “in respondent’s position.” Ante, at 36. Pre- sumably the rule applies to—and only to—individuals found within 25 feet of the border who have entered within the past 24 hours of their apprehension. Where its logic must stop, however, is hard to say. Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all proce- dural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them no matter how many decades they have lived here, how settled and integrated they are in their communities, or how many members of their family are U. S. citizens or residents.

This judicially fashioned line-drawing is not administra- ble, threatens to create arbitrary divisions between noncit- izens in this country subject to removal proceedings, and, most important, lacks any basis in the Constitution. Both the Constitution and this Court’s cases plainly guarantee due process protections to all “persons” regardless of their immigration status, a guarantee independent of the whims of the political branches. This contrary proclamation by the Court unnecessarily decides a constitutional question in a manner contrary to governing law.12

IV

The Court reaches its decision only by downplaying the

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12 The Court notes that noncitizens like respondent seeking legal ad-

mission lack due process rights “‘regarding [their] application.’” Ante, at 34 (quoting Landon v. Plasencia, 459 U. S. 21, 32 (1982)). It does not, however, explain what kinds of challenges are related to one’s applica- tion and what kinds are not. Presumably a challenge to the length or conditions of confinement pending a hearing before an immigration judge falls outside that class of cases. Because respondent only sought prom- ised asylum procedures, however, today’s decision can extend no further than these claims for relief.

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SOTOMAYOR, J., dissenting

nature of respondent’s claims, ignoring a plethora of com- mon-law immigration cases from a time of relatively open borders, and mischaracterizing the most relevant prece- dents from this Court. Perhaps to shore up this unstable foundation, the Court justifies its decision by pointing to perceived vulnerabilities and abuses in the asylum system. I address the Court’s policy concerns briefly.

In some ways, this country’s asylum laws have repre- sented the best of our Nation. Unrestricted migration at the founding and later, formal asylum statutes, have served as a beacon to the world, broadcasting the vitality of our institutions and our collective potential. For many who come here fleeing religious, political, or ideological persecu- tion, and for many more who have preceded them, asylum has provided both a form of shelter and a start to a better life. That is not to say that this country’s asylum policy has always, or ever, had overwhelming support. Indeed, many times in our past, particularly when the Nation’s future has appeared uncertain or bleak, members of this country have sought to close our borders rather than open them. See S. Legomsky & C. Rodriguez, Immigration and Refugee Law and Policy 875–876 (5th ed. 2009) (explaining that restric- tionist sentiments in the 1930s were fueled in part by the Great Depression). Yet this country has time and again re- affirmed its commitment to providing sanctuary to those es- caping oppression and persecution. Congress and the Ex- ecutive have repeatedly affirmed that choice in response to serial waves of migration from other countries by enacting and amending asylum laws and regulations. In fact, a cen- terpiece of respondent’s claim is that officials were not fol- lowing these statutorily enacted procedures.

The volume of asylum claims submitted, pending, and granted has varied over the years, due to factors like chang- ing international migration patterns, the level of resources devoted to processing and adjudicating asylum applica- tions, and amendments to governing immigration laws. See

Cite as: 591 U. S. ____ (2020) 39

SOTOMAYOR, J., dissenting

Congressional Research Service, Immigration: U. S. Asy- lum Policy 25 (Feb. 19, 2019); see also Dept. of Homeland Security, Office of Immigration Statistics, 2018 Yearbook of Immigration Statistics 43 (2019) (Table 16) (“Individuals Granted Asylum Affirmatively or Defensively: Fiscal Years 1990 to 2018” (quotation modified)). For the past few years, both new asylum applications and pending applications have steadily increased. Immigration: U. S. Asylum Policy, at 25.

It is universally acknowledged that the asylum regime is under strain. It is also clear that, while the reasons for the large pending caseload are complicated,13 delays in adjudi- cations are undesirable for a number of reasons. At bottom, when asylum claims are not resolved in a timely fashion, the protracted decisionmaking harms those eligible for pro- tection and undermines the integrity of the regime as a whole. D. Meissner, F. Hipsman, & T. Aleinikoff, Migration Policy Institute, The U. S. Asylum System in Crisis: Chart- ing a Way Forward 4 (Sept. 2018).

But the political branches have numerous tools at their disposal to reform the asylum system, and debates over the best methods of doing so are legion in the Government, in the academy, and in the public sphere.14 Congress and the

——————

13 In 2018 Senate Judiciary Committee hearings, the Director of the

Executive Office of Immigration Review identified factors contributing to the backlog of cases, including lengthy hiring times for new immigration judges and the continued use of paper files. See Testimony of James McHenry, Strengthening and Reforming America’s Immigration Court System, Hearings before the Subcommittee on Border Security and Im- migration of the Senate Committee on the Judiciary, 115th Cong., 2d Sess., 2 (2018). The Court, meanwhile, insinuates that much of the bur- den on the asylum system can be attributed to frivolous or fraudulent asylum claims. See, e.g., ante, at 1, 7–8, nn. 9 and 10. But the magnitude of asylum fraud has long been debated. See S. Legomsky & C. Rodriguez, Immigration and Refugee Law and Policy 1034 (5th ed. 2009); Immigra- tion: U. S. Asylum Policy, at 28.

14 See, e.g., GAO, Immigration Courts: Actions Needed To Reduce Case Backlog and Address Long-Standing Management and Operational

40 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

Executive are thus well equipped to enact a range of measures to reform asylum in a number of ways and rou- tinely do so.15 Indeed, as the Court notes, the expedited re- moval process at issue here was created by law as one such measure to ease pressures on the immigration system. Ante, at 4.

In the face of these policy choices, the role of the Judiciary is minimal, yet crucial: to ensure that laws passed by Con- gress are consistent with the limits of the Constitution. The Court today ignores its obligation, going out of its way to restrict the scope of the Great Writ and the reach of the Due Process Clause. This may accommodate congressional pol- icy concerns by easing the burdens under which the immi- gration system currently labors. But it is nothing short of a self-imposed injury to the Judiciary, to the separation of powers, and to the values embodied in the promise of the Great Writ.

Because I disagree with the Court’s interpretation of the reach of our Constitution’s protections, I respectfully dis- sent.

——————

Challenges (GAO–17–438, June 2017); Uchimiya, A Blackstone’s Ratio for Asylum: Fighting Fraud While Preserving Procedural Due Process for Asylum Seekers, 26 Pa. St. Int’l L. Rev. 383 (2007); Martin, Reform- ing Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. Pa. L. Rev. 1247 (1990).

15 P. Alvarez & G. Sands, Trump Administration Proposes Sweeping Changes to U. S. Asylum System in New Rule, CNN, June 10, 2020 (online source archived at www.supremecourt.gov).

Congratulations to Priscilla Alvarez and Geneva Sands of CNN, frequent contributors to “Courtside” for being cited by Justice Sotomayor in FN 15.

This November, vote like your life and everyone’s rights depend on it. Because they do!

PWS

06-25-48

🏴‍☠️☠️👎🏻🤮CRIMES AGAINST HUMANITY: HOW AMERICA IS DISGRACED BY A CORRUPT, RACIST, WHITE NATIONALIST REGIME THAT HAS LAUNCHED A COWARDLY & ILLEGAL ATTACK DESIGNED TO KILL ASYLUM SEEKERS — Hon. Jeffrey S. Chase, “Taking a Sledgehammer to Asylum”

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges

https://www.jeffreyschase.com/blog/2020/6/23/taking-a-sledgehammer-to-asylum

Taking a Sledgehammer to Asylum

The Trump Administration has repeatedly acted to damage our country’s asylum laws.  Its latest move, expressed in 161 pages of proposed regulations, does so with a sledgehammer.  The proposal claims that “as an expression of a nation’s foreign policy, the laws and policies surrounding asylum are an assertion of a government’s right and duty to protect its own resources and citizens, while aiding those in true need of protection from harm.”  Note how “aiding those in true need of protection from harm” comes last.  The proposal supports the preceding statement with a case that not only had nothing to do with asylum, but predated by eight years the enactment of the 1980 Refugee Act, which continues to serve as our country’s law of asylum.

It was necessary to reach back so far because the Refugee Act actually stands for the opposite proposition, placing the protection of those in need above foreign policy considerations.  The Refugee Act replaced our Cold War-influenced refugee preferences with an obligation to provide protection to those from any country fearing persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion.

The Department of Justice tried to limit the impact of this monumental change at its outset by interpreting the new legal standard as restrictively as possible.  In 1987, the Supreme Court rejected the Department’s interpretation of the term “well-founded fear,” finding that the meaning the Department applied to the term was not the one intended by Congress.  The Court found it clear that the primary purpose of Congress was to bring U.S. law into conformity with the 1967 Protocol on the Status of Refugees.  It therefore looked for guidance to UNHCR and legal scholars, and concluded that the standard passed by Congress allowed for as little as a ten percent chance of persecution in order to merit asylum.

More than three decades later, District Court Judge Emmet G. Sullivan put a stop to the Department’s attempt to exclude victims of domestic violence and gang violence from asylum protection at the credible fear stage.  In a lengthy, detailed decision whose reasoning the Sixth Circuit recently adopted for full asylum determinations, the court reiterated that Congress, and not the Attorney General, creates our asylum laws, and that Congress intended for those laws to conform to the Protocol’s more expansive view.

It was because of that more expansive view that the Protocol, and its predecessor, the 1951 Convention on the Status of Refugees, avoided the type of strict definitions the proposed regulations seek to impose.  One renowned scholar explained the drafters’ intent “to introduce a flexible concept which might be applied to circumstances as they might arise; or in other words, that they capitulated before the inventiveness of humanity to think up new ways of persecuting fellow men.”1  It is this built-in flexibility that the latest proposal takes exception to.

Of course, it is still Congress, and not the executive branch, that enacts our asylum laws.  And should the present proposal become a final rule before this administration is done, it will be the reassertion of that reality by the courts that will save those seeking refuge here.

I plan to address the different sections of the proposals in installments.  I begin with the proposal to redefine “political opinion.”

The last few months have taught us that, under the Trump Administration, everything is political.  Even the decision to wear a mask and self-isolate out of consideration to our neighbors has been cast as an expression of political opinion.  The virus itself was first depicted as a Democratic hoax; once its existence could no longer be denied, it had to be given a nationality and portrayed as part of a foreign plot.  This is a virus we are talking about.

The Administration saw political allies in armed and angry mobs who somehow portrayed temporary rules designed to protect us all by slowing the spread of disease as a denial of their basic human rights.  And then the same administration branded as political enemies those protesting the very real and systemically ingrained deprivation of their basic human rights solely because of the color of their skin.  The irony is not lost in this very same government that politicizes everything now imposing a very narrow, strict view of what can be called political opinion for asylum purposes.

Regulations may define or clarify laws, but may not rewrite them.  And the courts need only defer to the Department’s interpretation where the language of the law itself is ambiguous.  Courts may go to great lengths and employ all tools of construction at their disposal before deeming a statute ambiguous.

Looking to the Refugee Act, the courts will find that  in the 40 years since its passage, the only amendment relating to its definition of political opinion expanded the meaning of that term.  In 1996, the Republican-controlled Congress amended the refugee definition to read that coercive abortion and sterilization procedures constitute persecution on account of the victim’s political opinion.  Neither the wording of the statute nor its application by the BIA require any inquiry into the motives or beliefs of the victim of the coercive family planning policy.  In other words, a woman need not declare in an online manifesto that she will become pregnant as a statement of protest against an oppressive government’s policy.  One at risk of abortion for any pregnancy by law fears persecution on account of her political opinion.

The proposed regulations acknowledge this.  However, they fail to reconcile how the rest of the proposed language on this topic, the first attempt ever to restrict by either statute or regulation what may constitute a political opinion, is consistent with Congress’s adoption of such an expansive view of political opinion to allow even an accidental pregnancy to satisfy the term’s definition.

The Department provides a weak justification for interjecting itself into the matter in the first place, claiming that the evolving state of case law makes it just too difficult for immigration judges to apply the law consistently.  Any pretense of providing clarification vanishes upon attempting to decipher the proposed guidance on the topic.  Under the proposed rule, immigration judges, asylum officers, and the BIA will be precluded from granting asylum based on a political opinion “defined solely by generalized disapproval of, disagreement with, or opposition to criminal, terrorist, gang, guerilla, or other non-state organizations absent expressive behavior in furtherance of a cause against such organizations related to efforts by the state to control such organizations or behavior that is antithetical to or otherwise opposes the ruling legal entity of the state or a legal sub-unit of the state.”  What could be clearer than that?

As its sole example of the confusion that purportedly warrants the administration stepping in, the proposal cites two recent decisions.  The first (which we can assume the administration doesn’t like) is the Second Circuit’s recent decision in Hernandez-Chacon v. Barr, holding that in resisting rape by an MS-13 member, the asylum applicant expressed “her opposition to the male-dominated social norms in El Salvador and her taking a stance against a culture that perpetuates female subordination and the brutal treatment of women.”

The other case referenced was a 15 year old Fourth Circuit decision, Saldarriaga v. Gonzales, which the Department describes as holding that “disapproval of a drug cartel is not a political opinion.”  In its attempt to demonstrate that immigration judges sitting in the jurisdictions of the Second and Fourth Circuits might reach different results, the Department conveniently omits a much more recent Fourth Circuit decision, Alvarez Lagos v. Barr, which found unrefuted evidence that the Barrio 18 gang imputed an anti-gang political opinion to the asylum-seeker’s nonpayment of extortion and flight to the U.S.  Including that decision would have cleared up the purported confusion used to justify the new rules, so the proposal simply ignored it.

But even accepting the Department’s view that different circuits might take different views on this topic, and that somehow, it’s the responsibility of someone like Stephen Miller, as opposed to the Supreme Court, to resolve such conflict, would applying that garbled definition cited above (and no, it does not become clearer with repeated reading) change the outcome of Hernandez-Chacon?  Because in the view of the court, the asylum applicant in that case did not simply express a generalized disapproval of a gang.  Her opposition to systemic injustice perpetuating brutality against women, who are viewed as a subordinate class, is an expression of something much larger, in which the government is implicated.

Grasping at additional straws, the Department also pointed to one sentence in a BIA decision from 1996, Matter of S-P-, stating the need in that case to examine whether the persecutors were motivated at least in part by their belief that the asylum applicant held political views “antithetical to the government.”  This, according to the administration, is proof that only views antithetical to the government can be political opinion.  However, in that case, the asylum seeker had been arrested, detained for six months, interrogated, and tortured by the government, specifically, government soldiers.  So in determining whether such persecution was on account of the applicant’s political opinion, in that particular case, the Board obviously focused on whether those soldiers thought the victims views were anti-government.  The sentence in no way intended to state that under all circumstances must political opinion be one that is directly aimed at the government.  By analogy, the BIA didn’t say that only women can be members of particular social groups because in one gender-based case, it analyzed whether the social group elements were “fundamental to the individual identity of a young woman.”  See Matter of Kasinga, 21 I&N Dec. 357, 366 (BIA 1996).  The point is, the Board used the language necessary to decide the case before it, and for the Department to now pretend otherwise is disingenuous.

Note:

  1.  Atle Grahl-Madsen, The Status of Refugees in International Law 193 (1966).

Copyright 2020 Jeffrey S. Chase.  All rights reserved.

Republished with permission.

*****************

A nation’s inhumanity to others, allowing unqualified individuals like Stephen Miller to make policy, and moral cowardice will have severe future consequences. 

PWS

06-24-20

🏴‍☠️☠️NO, IT’S NOT “JUST ENFORCING THE LAW” AS ALBENCE & THE DHS FALSELY CLAIM — THE TRUMP ADMINISTRATION’S INTENTIONALLY CRUEL, STUPID, WASTEFUL, IMMORAL, & ENTIRELY COUNTERPRODUCTIVE DEPORTATION POLICIES ARE “CRIMES AGAINST HUMANITY” — We All Are Demeaned & Reduced As Human Beings By Allowing Trump’s DHS & His DOJ to Get Away With This!

 

Julia Preston
Julia Preston
American Journalist
The Marshall Project

https://www.themarshallproject.org/2020/06/22/the-true-costs-of-deportation

 

Julia Preston reports for The Marshall Project:

The True Costs of Deportation
When immigrant parents of American children are expelled, the lives of their loved ones can fall apart. Here are the stories of three families who faced financial ruin, mental health crises—and even death.
By JULIA PRESTON

Before her husband was deported, Seleste Hernandez was paying taxes and credit card bills. She was earning her way and liking it.
But after her husband, Pedro, was forced to return to Mexico, her family lost his income from a job at a commercial greenhouse. Seleste had to quit her nursing aide position, staying home to care for her severely disabled son. Now she is trapped, grieving for a faraway spouse and relying on public assistance just to scrape by.
She went, in her eyes, from paying taxes to depending on taxpayers. “I’m back to feeling worthless,” she says.
This story was published in partnership with The Guardian.
Across the country, hundreds of thousands of American families are coping with anguish compounded by steep financial decline after a spouse’s or parent’s deportation, a more enduring form of family separation than President Trump’s policy that took children from parents at the border.
Trump has broadened the targets of deportation to include many immigrants with no serious criminal records. While the benefits to communities from these removals are unclear, the costs—to devastated American families and to the public purse—are coming into focus. The hardships for the families have only deepened with the economic strains of the coronavirus.
A new Marshall Project analysis with the Center for Migration Studies found that just under 6.1 million American citizen children live in households with at least one undocumented family member vulnerable to deportation—and household incomes drop by nearly half after deportation.
About 331,900 American children have a parent who has legal protection under DACA, or Deferred Action for Childhood Arrivals, the program that shields immigrants who came here as children. After the Supreme Court ruled on Thursday that Trump’s cancellation of the DACA program was unlawful, those families still have protection from deportation. But the court’s decision allows the president to try to cancel the program again. The debate cast light on the larger population of 10.7 million undocumented immigrants who have made lives in the country, raising pressure on Congress to open a path to permanent legal status for all of them.
We examined the impact of the wrenching losses after deportation and the potential costs to American taxpayers of expelling immigrants who are parents or spouses of citizens.
After an immigrant breadwinner is gone, many families that once were self-sufficient must rely on social welfare programs to survive. With the trauma of a banished parent, some children fail in schools or require expensive medical and mental health care. As family savings are depleted, American children struggle financially to stay in school or attend college.
Three families in northeastern Ohio, a region where Trump’s deportations have taken a heavy toll, show the high price of these expulsions.

. . . .

****************
Read the rest of Julia’s article at the link.

This isn’t the first time in American history that invidious racially-motivated enforcement of bad laws has been used to dehumanize or abuse “the other” while hiding behind transparently fake law enforcement pretexts. Poll taxes anyone?

A straightforward reading of our Constitution says that removing parents of U.S. citizens and breadwinners of American families without compelling reasons for doing so (lacking in these cases) is unreasonable and therefore a violation of Due Process. It’s time to stop doing the immoral and unconstitutional! And it’s past time to insure that public officials like Albence who promote and defend these assaults on humanity are removed from power.

The current institutions of Government have initiated, carried out, or failed to stop these illegal actions. Disappointing, but perhaps not surprising, considering that the nation, by minority vote, enabled a scofflaw White Nationalist regime in 2016.

But, voters still have the political power to oust the abusers of humanity and purveyors of racially-motivated lies and false narratives, and to insist on long-overdue changes to the system to make due process (reasonability), fundamental fairness, and equality under the law a reality for the first time in U.S. history, rather than continuing to be the Constitution’s intentionally unfulfilled promises.

Due Process Forever!

PWS

06-24-20

CHANNELING JOHN LENNON? – Conservative Judiciary Revolts! – Hand-Selected Over Two-Decades By America’s Chief Prosecutors to Quash Dissent & Promote Compliance With DOJ’s Politicized “Priorities,” Immigration Judges Chafe Under Interference, Humiliation, Lack of Concern for Health & Safety by Their Political Boss “Billy the Bigot” Barr!

 

REVOLUTION

By The Beatles

 

[Intro]
Aah!

[Verse 1]
You say you want a revolution
Well, you know
We all want to change the world

You tell me that it’s evolution
Well, you know
We all want to change the world

But when you talk about destruction
Don’t you know that you can count me out

[Chorus]
Don’t you know it’s gonna be
Alright
Alright
Alright

[Verse 2]
You say you got a real solution
Well, you know
We’d all love to see the plan

You ask me for a contribution
Well, you know
We’re all doing what we can
But if you want money for people with minds that hate
All I can tell you is, brother, you have to wait

[Chorus]
Don’t you know it’s gonna be
Alright
Alright
Alright

[Instrumental Break]

[Verse 3]
You say you’ll change the constitution
Well, you know
We all want to change your head
You tell me it’s the institution
Well, you know
You better free your mind instead

But if you go carrying pictures of Chairman Mao
You ain’t going to make it with anyone anyhow

[Chorus]
Don’t you know it’s gonna be
Alright
Alright
Alright

[Outro]
Alright, alright
Alright, alright
Alright, alright
Alright, alright!

 

Music and lyrics from Genius.com:

https://genius.com/

 

*********************************

https://prospect.org/justice/revolt-of-the-immigration-judges/

From American Prospect:

The Revolt of the Judges

The Trump administration has ordered immigration court judges to reject more applicants and speed up trials—and it wants to bust the judges’ union.

BY STEPHEN FRANKLIN

 

JUNE 23, 2020

 

 

First you see scenes from classic movies of wizened judges, brave lawyers, and contemplative juries, but then the video lays out its grim theme: This is not what happens in America’s immigration courts.

These courts are subject to political influences, a narrator explains. They are driven by political messages, and bound by rules based on the “whims” of whoever is in power in Washington, D.C., she says. They don’t provide the blind justice that Americans expect. What they provide is assembly-line justice.

Who is making these claims? A hard-line political or fringe legal group? Hardly. The video is from the National Association of Immigration Judges (NAIJ), the union that represents the nation’s 460-plus immigration judges—reasonably well-paid lawyers, many of whom come from government and law enforcement backgrounds.

Nor is the video the first such salvo from the judges’ group, which has lobbied Congress and spoken out frequently about what’s gone exceptionally wrong with the immigration courts under the Trump administration. Such criticisms, the judges say, are the reason that the government sought last August to decertify their union, the only such effort taken by the Trump administration against a federal workers’ labor organization.

“They are trying to silence the judges by silencing their union,” says Paul Shearon, head of the 90,000-member Professional and Technical Engineers union, to which the NAIJ has been affiliated for the past 30 years. He worries that busting a federal union may be the “next step” in the Trump administration’s actions meant to weaken all federal unions.

Shearon is confident, however, that the union will win its fight against decertification when the local level of the Federal Labor Relations Authority (FLRA) issues its ruling. He is “not so optimistic,” though, that it will prevail at the higher level of the FLRA, where two of three boardmembers are Trump appointees and “clearly political players.” Though the government has sought to speed up a ruling, the judges do not know when a decision is likely—but they expect one before the November election.

The judges’ complaints are many.

. . . .

***************************************

Read the rest of the article and view the video “The Immigration Courts: Nothing Like You Have Imagined.”

Should be required viewing for every Justice, Federal Judge, U.S. Legislator, and law student.

You don’t need a law degree to know that something purporting to be a “court” where a notoriously corrupt and dishonest political prosecutor is directing “his judges” to deny asylum and speed up the assembly line is unconstitutional under the Fifth and Fourteenth Amendments. Yet, every day, life-tenured Court of Appeals Judges rubber stamp the results, often effectively death sentences, of this Star Chamber without questioning the obvious defects. Why?

America’s need for judicial reform and establishing scholarship, courage, integrity, fairness, commitment to due process and human rights, practical problem solving, and humanity as the hallmarks of judicial service runs much deeper than the Immigration “Courts.” If we want to achieve “equal justice for all” as required by our Constitution, but not being uniformly delivered by our judiciary, we need better judges at all levels of our Federal Judiciary.

That starts with throwing out Trump and the GOP Senate that has stuffed our Article III Judiciary with unqualified right-wing ideologues, intentionally tone-deaf to the legal and human rights of refugees, immigrants, people of color, women, the poor, working people, and a host of others whose humanity they decline to recognize. But, that is by no means the end of the changes necessary!

Due Process Forever. Complicit Courts, Never!

PWS

06-24-20

 

WACKO-IN-CHIEF’S FINAL DESTRUCTION OF LEGAL IMMIGRATION SYSTEM BARS WORK VISAS FOR THOSE NEEDED FOR ECONOMIC RECOVERY — Xenophobic Move So Dumb & Counterproductive That Even Trump Tool L. Graham Forced to Feebly Dissent!

https://thehill.com/homenews/senate/503985-graham-trump-visa-order-will-have-a-chilling-effect-on-our-economic-recovery

Rebecca Klar reports for The Hill:

Sen. Lindsey Graham (R-S.C.) said Monday that the order President Trump signed earlier in the day suspending,  with some exceptions for health care and other “essential workers,” certain temporary work visas through the end of the year will have a “chilling effect” on the nation’s economic recovery amid the coronavirus pandemic.

“This decision, in my view, will have a chilling effect on our economic recovery at a time we should be doing all we can to restore the economy,” Graham said in a series of tweets.

. . . .

************************

Read Rebecca’s full article at the above link.

Of course, if Graham, Mitch, and their GOP buddies in the Senate and House really wanted to rein in Trump they could. Just get together with Nancy Pelosi and Chuck Schumer and pass by veto-proof margins legislation countermanding or amending Trump’s order.

But, that would require action, not just babbling. 

In the meantime, Trump has succeeded in totally destroying the U.S. legal immigration and refugee system that has taken decades to build.  And, the institutions that could and should have stopped him failed.

PWS

06-23-22

TOM PETTY’S FAMILY BLASTS USE OF LATE ROCKER’S SONG “I WON’T BACK DOWN” AT TRUMP’S TULSA HATE RALLY, DEMANDS “CEASE & DESIST” —  “Both the late Tom Petty and his family firmly stand against racism and discrimination of any kind. Tom Petty would never want a song of his used for a campaign of hate. He liked to bring people together.” 

Tom Petty
Tom Petty and the Heartbreakers perform in concert at the BankAtlantic Center in Sunrise, Florida on July 15, 2008. (UPI Photo/Michael Bush) (Newscom TagID: upiphotos868523) [Photo via Newscom]
Alaa ElassarWriter
CNN
Alaa Elassar
Writer
CNN Digital

Alaa Elassar writes at CNN:

https://www.cnn.com/2020/06/21/politics/tom-petty-trump-cease-and-desist-trnd/index.html

(CNN)The family of the late Tom Petty has filed a cease and desist notice to the Trump campaign after one of the musician’s songs was played at the President’s campaign rally in Tulsa, Oklahoma.

Petty’s 1989 hit “I Won’t Back Down” was played on Saturday evening at the rally, which drew a smaller-than-expected crowd of supporters.

“Trump was in no way authorized to use this song to further a campaign that leaves too many Americans and common sense behind,” the family said in a tweet Saturday.

“Both the late Tom Petty and his family firmly stand against racism and discrimination of any kind. Tom Petty would never want a song of his used for a campaign of hate. He liked to bring people together,” according to the tweet.

. . . .

*********************

Read the complete article at the link.

Good for them!

As my former Georgetown Law Refugee Law & Policy students will remember, I used the lyrics of “Refugee” from “Professor Tom” & The Heartbreakers as a “teaching vehicle” about what it’s really like to be a refugee (something of which Trump and his cult of mindless supporters seem entirely unaware). 

Perhaps a better choice from Tom’s collection, and one more indicative of the true state of our nation and Trump’s recent poll performance would have been Tom’s “Free Fallin’.”

Free Fallin’

by Tom Petty

She’s a good girl, loves her mama
Loves Jesus and America too
She’s a good girl, crazy ’bout Elvis
Loves horses and her boyfriend too

It’s a long day living in Reseda
There’s a freeway runnin’ through the yard
And I’m a bad boy ’cause I don’t even miss her
I’m a bad boy for breakin’ her heart

And I’m free, free fallin’
Yeah I’m free, free fallin’

All the vampires walkin’ through the valley
Move west down Ventura boulevard
And all the bad boys are standing in the shadows
All the good girls are home with broken hearts

And I’m free, free fallin’
Yeah I’m free, free fallin’
Free fallin’, now I’m free fallin’, now I’m
Free fallin’, now I’m free fallin’, now I’m

I want to glide down over Mulholland
I want to write her name in the sky
Gonna free fall out into nothin’
Gonna leave this world for a while

And I’m free, free fallin’
Yeah I’m free, free fallin’

Check out the video and get more from Tom here:  

https://www.songfacts.com/lyrics/tom-petty/free-fallin

PWS

06-21-20

LIGHT IN A TIME OF DARKNESS: Humanity & Law in America Probably Had Their Two Best Moments  (LGBTQ Rights & DACA) in Three Years Of Trump’s Darkness — Chief Justice John Roberts Made It Happen — How His  Decision to Stand Up For Dreamers & The Rule of Law Against Trump’s Inhumanity, Cruelty, & Lawlessness is Already Making A Difference in The Lives of American Young People Across Our Broken Nation!

John Roberts
Chief Justice John Roberts
Theresa Vargas
Theresa Vargas
Reporter
Washington Post

https://www.washingtonpost.com/local/behind-defund-the-police-and-abolish-ice-is-a-shared-hope-that-more-dads-make-it-home/2020/06/20/a8c0969a-b28a-11ea-8f56-63f38c990077_story.html

Theresa Vargas reports for WashPost:

By Theresa Vargas

June 20 at 10:30 AM ET

Angel Romero was about 8 years old when his bus rides home from school changed.

His family was living in Prince William County in Virginia at the time, and the elementary school student didn’t understand much about the agreement the county had entered into with U.S. Immigration and Customs Enforcement. He knew only that some of his classmates had arrived home after school and found their parents gone.

“I started worrying if I would have parents when I came home,” he recalls.

On those bus rides home, he would sit with his anxiety until his bus came to his stop.

Some days, he would see his mom and dad standing there, and feel immediate relief that they hadn’t been deported. Other days, his mother would wait alone, because his father had to work at his construction job, and the boy would carry his fears with him until his dad walked in the door.

“It would be really scary not knowing if he was at work — or somewhere else,” the now 21-year-old tells me when we talk on a recent morning. “There is still that subconscious fear that has stuck with me. It’s never gone away.”

In the past week, Romero has been able to celebrate on a personal level two nationally recognized victories: Prince William County’s decision to not renew its 287(g) agreement with ICE and a Supreme Court ruling that blocks President Trump’s attempt to end the Deferred Action for Childhood Arrivals (DACA) program that offers protections to immigrants who were brought to the country as children.

[[Large Virginia county ends immigration enforcement agreement]]

Romero, who is a DACA recipient, stood in front of the Supreme Court on the day that decision was made. At one point, he took a knee and raised a fist in the air. A line of people, who, like him, had worked with the immigrant advocacy group CASA toward that moment, did the same.

It’s a posture that has been seen over and over again in recent weeks as streets across the country have filled with people protesting police brutality and other racial inequities. The push to “Defund the Police,” which has grown from those protests, may seem a distant fight from the effort to “Abolish ICE,” which immigrant rights groups have demanded, but many of the activists who are on the front lines right now, pushing for change, see the two as connected. They see them as two cries in the same battle.

What “Defund the Police” and “Abolish ICE” share is an acknowledgment that bad law enforcement practices, no matter what the badge looks like, unjustly separate families. They leave children not knowing whether their dads (or moms) will make it home, not because of what they did that day, but because of who they are.

Both also directly affect black immigrants.

In rallies that took place before the Prince William County decision, brown hands held white signs declaring “Black Lives Matter.” And in the hours after the Supreme Court decision, black activists called for an end to how the country enforces immigration. The system, which has seen in-custody deaths of adults and children, criminalizes people for entering the country while not providing clear paths to citizenship.

“These movements should be very linked, and I believe they are getting more and more linked as we are fighting together,” says Luis Aguilar, the Virginia state director for CASA. He is a DACA recipient and has spent years working toward seeing Prince William County end its agreement with ICE.

He is also Afro-Mexican. His dad comes from a region of Mexico where runaway slaves settled.

“When I see things like what happened to George Floyd, it goes beyond the personal,” the 33-year-old says of the police-custody killing that has sparked weeks of protests. “It goes to a space where you start thinking about why these things are happening, and you realize that currently society isn’t in a place where it truly respects each person as a human being.”

Aguilar was 15 and living in Falls Church when his father was deported.

“I would not want any other child to experience the results of a broken immigration system,” he says. “I think we owe it to society to fix the system.”

The decision by Prince William lawmakers not to renew its agreement with ICE when it expires at the end of the month received a blip of attention compared with the Supreme Court decision. But it is a significant development for the Washington region. That program changed the county. It created a hostile atmosphere, and not just for undocumented immigrants. It forced Latino families to leave the county and some to avoid calling the police, even when they needed help.

I know this not only from studies that have been conducted over the years, but also from personal observation.

When I came to The Washington Post, it wasn’t as a columnist. I was hired to cover the Prince William County Police Department. I had been in that job less than a year when county lawmakers approved 287(g), which gave law enforcement officials some of the same powers as immigration enforcement agents. They did that despite hearing concerns from the police department that it would erode community trust, prevent immigrants from reporting crimes and require a whole lot of money.

When Corey Stewart was running for a Senate seat, I wrote about what I saw and experienced after the crackdown happened — including how a man yelled at me, “Go back to your country!” — to show the intangible ways in which it failed the community. (And for those who want to point to it as a solution to crime, Prince William Police Chief Barry M. Barnard was recently quoted as saying, “I’m not seeing any hard data where the 287 program has been shown to be the direct cause of any measurable crime reduction.”)

Instead, it left people feeling scared and targeted — and it did that to residents who weren’t even out of elementary school yet.

Angel Romero says for him, “that moment just changed everything.”

“It changed my personality,” he says. “I used to be a really talkative kid, and I had like a switch, where I became very closed off and introverted.”

. . . .

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Sophie Bolich
Sophie Bolich
Reporter
Madison.com (WI)

https://madison.com/news/local/govt-and-politics/an-amazing-feeling-of-relief-immigrant-community-cheers-daca-ruling/article_3d3a943b-ef1c-5228-aa44-af5bba8b347f.html?utm_source=BadgerBeat&utm_medium=referral&utm_campaign=News%20Alerts

Sophie Bolich reports for the Madison.com:

When Sharet Garcia heard the U.S. Supreme Court decided to uphold the Deferred Action for Childhood Arrivals program, all she could do was cry.

“I just couldn’t believe it,” she said.

As a DACA recipient and founder of the online networking space UndocuProfessionals, Garcia said that the decision came as a shock. “We’re very excited, of course, and very happy…but at the same time, we know there’s still a lot of work to be done,” she said.

In the year since its creation, UndocuProfessionals has garnered a nationwide following. In the past months, it has become a gathering space for DACA recipients — also called DREAMers — to find support through the uncertainty of the approaching decision.

Garcia said she stayed awake into the early hours Thursday morning answering messages from other DREAMers who were anxiously awaiting the results.

“I was there trying to support them in the best way I can,” she said.

The Supreme Court’s 5-4 decision, which came after months of anticipation, ruled that the Trump administration improperly ended the DACA program in 2017. The announcement left DREAMers and their loved ones with “an amazing feeling of relief,” said Centro Hispano director Karen Menendez Coller.

It was the second defeat this week for the Trump administration, coming just days after the court ruled in favor of anti-discrimination protection for LGBTQIA+ employees under the 1964 Civil Rights Act.

“The emotional impact is huge,” Menendez Coller said. “I can’t even describe the burden that this has lifted from so many people in the community.”

Anticipating the court’s decision against the backdrop of the pandemic, she added, was “an incredible load to carry,” noting the financial impact as well as the daily emotional turmoil that DREAMers face.

“You kind of have to put [the worry] at the back of your mind and ignore it,” said a Madison-area DACA recipient, who asked to remain anonymous. At the same time, she said, the thought was always lurking. “At any moment, had the outcome been negative, your whole world is going to change.”

She added that while many people weren’t hopeful about the decision, she was.

“There’s a lot more opportunities that people have had now for eight years,” she said, noting that, since the program’s 2012 inception, DREAMers have started small businesses, graduated college and worked for big companies.

“I think that that’s a big reason why I was like, maybe they’ll think twice about it. And thankfully they did.”

Though she counts the decision as a win, Menendez Collar said that the path to equity is “a long road.” Centro Hispano plans to continue mobilizing and raising funds to assist DREAMers and the undocumented community. They plan to collaborate with the Immigration Office of Affairs and increase the Immigrant Assistance Fund, which is housed at the Madison Community Foundation and helps DREAMers access legal help and cover fees associated with filing DACA applications.

. . . .

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Read the rest of Theresa’s and Sophie’s articles at the respective links above.

Imagine how many lives could be saved and changed for the better and how great America could become as a nation if Chief Justice Roberts and all other Federal Judges could find it within themselves to stand up for the legal, human, and Constitutional rights of refugees, asylum applicants, and migrants in every case challenging the Administration’s systemic, lawless, and invidiously motivated attacks on our legal system and the lives and humanity of the most vulnerable among us?

And, special thanks to Theresa and Sophie for reporting that puts humanity back in the law where it belongs. Without mercy, humanity, fairness, and decency, there can be neither law nor true justice.

Due Process Forever!

PWS

06-21-20