LA TIMES: SUPREMES MUST DELIVER ON PROMISE OF DUE PROCESS FOR IMMIGRANTS! — “[T]oo often immigrants haven’t received fair treatment from the courts.“ — Is Justice Gorsuch About To Make Good On His Oath To Uphold The Constitution By Standing Up For Due Process For Migrants?

http://www.latimes.com/opinion/editorials/la-ed-scotus-immigrants-20171005-story.html

“This week the Supreme Court heard arguments in two cases that pose the question of whether noncitizens should be afforded at least some of the due process of law that Americans take for granted. The answer in both cases should be a resounding yes.

On Monday, the justices considered whether a Filipino legal immigrant convicted of two home burglaries in California could be deported even if the wording of the federal law used to determine whether he could be removed from the U.S. was so unconstitutionally vague that it could not be enforced in a criminal court. On Tuesday, lawyers for a group of noncitizens detained by immigration authorities asked the court to rule that detainees are entitled to a bond hearing after six months of confinement.

Although the circumstances and legal issues in the two cases differ, the common denominator is the importance of affording due process to noncitizens.

James Garcia Dimaya, who was admitted to the U.S. as a lawful permanent resident at the age of 13, pleaded no contest in 2007 and 2009 to two charges of residential burglary. Concluding that one of the convictions was an “aggravated felony,” the Board of Immigration Appeals agreed with the Homeland Security Department that Dimaya should be deported.

The United States is often called “a nation of immigrants.” But too often immigrants haven’t received fair treatment from the courts.
But the U.S. 9th Circuit Court of Appeals overturned that decision. It said the definition of “aggravated felony” in immigration law incorporated a definition of “crime of violence” that was similar to language in a different law the Supreme Court had concluded in 2015 was too vague to be constitutional.

At Monday’s oral argument, Deputy Solicitor General Edwin S. Kneedler said the law at issue in Dimaya’s case didn’t suffer from the same vagueness problem. But even if it did, Kneedler told the court, “immigration is distinctive” and deportation “is not punishment for [a] past offense.” In other words, even if the law was too vague to be used for the purposes of criminal punishment, it could still be used for the purposes of deportation.

This brought a devastating rejoinder from Justice Neil Gorsuch. “I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn’t trade places in the world for someone who is deported,” Gorsuch said. He questioned the soundness of the “line that we’ve drawn in the past” between criminal punishment and civil penalties such as deportation.

We agree. If the court decides that the wording of the law that triggered Dimaya’s removal order was unconstitutionally vague, he should be entitled to relief. A law that is too vague to justify a criminal sentence shouldn’t be a good enough reason to expel someone from the country.

 

In the case argued Tuesday, a class-action lawsuit, noncitizens detained by immigration authorities asked the court to rule that they should receive bond hearings if their detention lasts for six months. The lead plaintiff is Alejandro Rodriguez, who grew up in Los Angeles as a lawful permanent resident. After Rodriguez was sentenced to five years’ probation on a misdemeanor drug possession conviction, he was detained and targeted for deportation to Mexico, the country he had left as a baby two decades earlier. He remained locked up as his legal battle dragged on for years.

The 9th Circuit ruled not only that detainees were entitled to bond hearings but also that they should be released unless the government could demonstrate by clear and convincing evidence that they were dangerous or a flight risk. But on Tuesday Deputy Solicitor General Malcolm Stewart told the court that detainees “have no such right.” He later said that insofar as foreigners arriving in the U.S. are concerned, the Supreme Court has made it clear that “whatever process Congress chooses to give is due process.”

Yet in recent years the court has recognized not only that noncitizens have constitutional rights but that deportation can be a catastrophic experience. In June, the court overturned the guilty plea of an immigrant from South Korea because his lawyer wrongly told him he wouldn’t be deported as a consequence of a plea bargain.

The United States is often called “a nation of immigrants.” But too often immigrants haven’t received fair treatment from the courts. The cases argued this week offer the Supreme Court an opportunity to rectify that injustice.”

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”Mouthing” due process for migrants is easy; the BIA does it all the time — so does EOIR.  But, actually providing due process for migrants is something totally different. Most courts, and particulately the BIA, routinely sign off on unfair procedures and interpretations that would never be considered “Due Process” in any other context.

I’m “cautiously heartened” by Justice Gorsuch’s apparent realization of the potentially catastrophic real human consequences of removal (often blithely ignored or downplayed by the BIA, Sessions, restrictionists, and Federal Courts) and recognition that the “civil-criminal” distinction is totally bogus — designed to sweep Constitutional violations under the rug — and needs to be eliminated.

As an Immigration Judge, when I was assigned to the “Detained Docket” in Arlington, I had case after case of green card holders who had minor crimes for which they paid fines or got suspended sentences — in other words, hadn’t spent a day in jail — “mandatorily detained” for months, sometimes years, pending resolution of their “civil” immigration cases. In plain language, they were sentenced to indefinite imprisonment but without the protections that a criminal defendant would receive! They, their families, and their employers were incredulous that this could be happening in the United States of America. I simply could not explain it in a way that made sense.

Talk is one thing, action quote another. But, if Justice Gorsuch folllows through on his apparent inclination to make Due Process protections for migrants “a reality” rather than a “false promise,” Constitutional protections will be enhanced for every American! We are no better than how we treat the least among us.

Ultimately, full delivery on the promise of Constitutional Due Process for everyone in America, including migrants, will require the creation of an independent Article I U.S. Immigraton Court. The current “captive system” — unwilling and unable to stand up for true Due Process for migrants — is a facade behind which routine denials of Constitutional Due Process take place. As Americans, we should demand better for the most vulnerable among us.

PWS

10-06-17

Led By Justice Thomas, Unanimous Supremes Reject USG’s Attempt To Deport Mexican Man For Consensual Sex With A Minor — “Strict Interpretation” Carries The Day!

Here is then full text of the opinion in Esquivel-Quintana v. Sessions:

https://www.supremecourt.gov/opinions/16pdf/16-54_5i26.pdf

Here’s a key excerpt from Justice Thomas’s opinion:

“Relying on a different dictionary (and “sparse” legislative history), the Government suggests an alternative “‘everyday understanding’” of “sexual abuse of a minor.” Brief for Respondent 16–17 (citing Black’s Law Dictionary 1375 (6th ed. 1990)). Around the time sexual abuse of a minor was added to the INA’s list of aggravated felonies, that dictionary defined “[s]exual abuse” as “[i]llegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance,” and defined “[m]inor” as “[a]n infant or person who is under the age of legal competence,” which in “most states” was “18.” Id., at 997, 1375. “‘Sex- ual abuse of a minor,’” the Government accordingly contends, “most naturally connotes conduct that (1) is illegal, (2) involves sexual activity, and (3) is directed at a person younger than 18 years old.” Brief for Respondent 17.

We are not persuaded that the generic federal offense corresponds to the Government’s definition. First, the Government’s proposed definition is flatly inconsistent with the definition of sexual abuse contained in the very dictionary on which it relies; the Government’s proposed definition does not require that the act be performed “by a parent, guardian, relative, or acquaintance.” Black’s Law Dictionary 1375 (6th ed. 1990) (emphasis added). In any event, as we explain below, offenses predicated on a special relationship of trust between the victim and offender are not at issue here and frequently have a different age requirement than the general age of consent. Second, in the context of statutory rape, the prepositional phrase “of a minor” naturally refers not to the age of legal competence (when a person is legally capable of agreeing to a contract, for example), but to the age of consent (when a person is legally capable of agreeing to sexual intercourse).

Third, the Government’s definition turns the categorical approach on its head by defining the generic federal offense of sexual abuse of a minor as whatever is illegal under the particular law of the State where the defendant was convicted. Under the Government’s preferred ap- proach, there is no “generic” definition at all. See Taylor, 495 U. S., at 591 (requiring “a clear indication that . . . Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses”); id., at 592 (“We think that ‘burglary’ in §924(e) must have some uniform definition independent of the labels employed by the various States’ criminal codes”).

C

The structure of the INA, a related federal statute, and evidence from state criminal codes confirm that, for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16.”

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Notwithstanding a supposedly “conservative” Court, going back several Administrations the USG has been losing on a surprisingly regular basis in its attempts to take the most extreme and inclusive interpretations of various already very harsh deportation provisions. And, “strict constructionists” like Justice Thomas and the late Justice Scalia have sometimes had just as much problem with the Government’s overreach as have supposedly more liberal or “middle of the road” justices. That’s why I’m not convinced that Justice Gorsuch (who did not participate in this case) will be as much of a “Government ringer” as some believe, at least in immigration matters.

Despite a number of notable setbacks at the Court, DHS, DOJ, and the BIA all seem to be rather “tone deaf” to the Court’s message. The Executive Branch continues to take the most extreme anti-immigrant positions even where, as in this case, it requires ignoring the “unambiguous” statutory language.

Given the “maximo enforcement” posture of the Trump Administration, there is little reason to believe that the Executive Branch will “get” the Court’s message about more reasonable interpretations of deportation statutes. Hopefully, the Court will continue to stand up against such abuses of Executive authority.

PWS

05-31-17

USG Bid To Max Criminal Deportation Law May Be On The Rocks Before The Supremes!

http://www.latimes.com/politics/la-na-supreme-court-deport-burglars-20170117-story.html

David G. Savage writes in the L.A. Times:

“The law in this area is not entirely clear. Beginning in 1988, Congress ordered deportation for noncitizens who are convicted of an “aggravated felony,” and it cited specific examples such as murder and rape. Later the law was expanded to include a general category of “crimes of violence.” This was defined to include offenses that involve a use of physical force or a “substantial risk” that force would be used.

Judges have been divided as to what crimes call for deportation. Looming over Tuesday’s argument was an opinion written two years ago by the late Justice Antonin Scalia. He spoke for an 8-to-1 majority in striking down part of a federal law known as the Armed Career Criminal Act. It called for extra years in prison for people convicted of more than one violent felony.

In that case, the extra prison term was triggered by the defendant’s possession of a shotgun. In frustration, Scalia and his colleagues said the law was unconstitutionally vague because they could not decide whether gun possession is itself evidence of a violent crime.

“You could say the exact same thing about burglary,” Justice Elena Kagan said Tuesday. A midday burglary of a home could result in violence, she said, but perhaps not if it were an empty garage or an abandoned house. “So it seems like we’re replicating the same kind of confusion,” she said.

Justice Stephen G. Breyer said judges have no way to decide which crimes typically or usually involve violence. “We’re just left guessing,” he said, suggesting a better approach would be “look at what the person did.”

But Deputy Solicitor Gen. Edwin Kneedler said a home burglary poses a risk of violence. And he said the court should defer to the government on matters of immigration. The law, he said, calls for a “broad delegation” of authority to executive officials.

This is the argument government lawyers made in defense of President Obama’s use of executive authority to try to shield millions of immigrants from deportation. It is also the argument that would call for upholding an aggressive deportation policy if pursued by the Trump administration.”

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Interesting juxtaposition here!  The key opinion relied on by the immigrant is an 8-1 decision in Johnson v. United States, 135 S.Ct. 2551 (2015), written by conservative judicial icon Justice Antonin Scalia in which he ripped apart on constitutional vagueness grounds a provision of the Armed Career Criminal Act that is virtually identical to the deportation statute.

The Obama Administration reacted by vigorously reasserting in the lower courts and the Immigration Courts its right to ignore Justice Scalia’s reasoning in the civil deportation context and continue to deport individuals convicted of residential burglary.

But, liberal judicial icon Judge Stephen Reinhardt and one of his colleagues on the Ninth Court of Appeals seized on Scalia’s opinion and applied it to the immigration law to block such deportations.  The Seventh Circuit followed suit, but the Fifth Circuit did not, thereby setting up a “circuit split” — something that often convinces the Supreme Court to exercise its discretionary authority to intervene by granting a “writ of certiorari.”

The case is Lynch v. Dimaya, No. 15-1498 which, as pointed out by David Savage, will soon morph into Sessions v. Dimaya.  Stay tuned for the results!

Did you know that:  The Government’s lawyer in Dimaya, career Deputy Solicitor General Edwin Kneedler, a friend and an outstanding public servant, has argued more than 125 U.S. Supreme Court cases during his distinguished Government career, more than any other living lawyer!  

Wow!  Most lawyers would feel lucky and privileged to argue a single case before the Supreme Court.  I know I sure would.  Just think of the hours of preparation spent in preparing to argue well over 100 cases!  

When I was Deputy General Counsel and Acting General Counsel of the Legacy INS, I used to help the Solicitor General’s Office prepare for oral arguments in immigration cases.  So, I know how intensive the preparation process is.  

At least once, I was asked to sit with the Deputy SG arguing the case at counsel table in the Court.  That was as close as I ever got to appearing before the Court.  

I remember one case that I observed — I can’t remember if I was at counsel table or in the audience — was the immigration classic INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) establishing the generous “well-founded fear = reasonable likelihood” standard for asylum, which I ended up having to apply thousands of times as a trial and appellate judge in the Immigration Courts.  That day, however, we were on the “losing” side of the argument, having presented the case for a more stringent standard.  Nevertheless, I think the Court got it completely right.  

The “winning” lawyer before the Court that day was a young immigration attorney from San Francisco, Dana Marks Keener, now known as Judge Dana Leigh Marks of the San Francisco Immigration Court and the President of the National Association of Immigration Judges.  Since then, of course, Dana and I have become judicial colleagues and great friends.  I often refer to her as “the founding mother of modern U.S. asylum law.”

Small world.

PWS

01/18/17