🏴‍☠️SUPREMES’ GOP MAJ. SLAMS GULAG DOOR SHUT ON REFUGEES IN “WITHHOLDING ONLY PROCEEDINGS” 👎🏽 — “NO BOND HEARINGS FOR YOU, ALIENS!” — Johnson v. Guzmán Chavez (6-3) — Oh, To Be A “Pipeline Builder” Endowed With Legal & Human Rights That Even Elite GOP Supremes Will Recognize!

https://www.washingtonpost.com/politics/courts_law/supreme-court-deported-immigrants-penneast-pipeline/2021/06/29/3e83164e-d8dc-11eb-8fb8-aea56b785b00_story.html

This WashPost headline and Post Supreme Court reporter Robert Barnes’s summary say it all!

Supreme Court rules against immigrants claiming safety fears after deportation and for pipeline builders

By Robert Barnes

June 29 at 5:22 PM ET

. . . .

In the immigration case, the court was considering the rights of a relatively small subset of immigrants: those who were deported once before but reentered the United States illegally because they say they faced threats at home.

At issue was a complex federal law that authorizes the government to detain immigrants and which section of it applies to these types of cases.

One piece of the law says, “the alien may receive a bond hearing before an immigration judge” and thus the chance to be free while proceedings continue, Justice Samuel A. Alito Jr. wrote for the majority. In the other, the immigrant is considered “removed,” and indefinite detention is warranted.

Alito and his fellow conservative justices said it was the second that applied, and the detainees do not get a bond hearing. The court’s three liberals objected.

The case involved people who an immigration officer found had credible fears of danger or persecution in their home countries. For instance, Rodriguez Zometa said he was threatened with death by the 18th Street Gang when he was removed to his home country of El Salvador.

The question of whether the government could hold the immigrants without a hearing before an immigration judge had divided courts around the country. The case was argued before President Biden took office, and lawyers for the Trump administration told the court immigrants were not entitled to a hearing.

Alito said Congress had good reason to be more restrictive with those who came back into the country after being deported. “Aliens who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order” that they leave, he said.

He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

The court’s liberals, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, saw it differently and would have affirmed the victory the plaintiffs won at the U.S. Court of Appeals for the 4th Circuit in Richmond.

“Why would Congress want to deny a bond hearing to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years?” Breyer wrote. “I can find no satisfactory answer to this question.”

The case is Johnson v. Guzman Chavez.

. . . .

Here’s the “full text” of the decision:

19-897_c07d

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

Nice summary, Robert! You can read the rest of Barnes’s report at the link. Indeed, Justice Breyer’s cogent question quoted in the article remains unanswered by the wooden legal gobbledygook in the majority decision, devoid of much understanding of how the dysfunctional Immigration Courts and the DHS “New American Gulag” actually operate and dismissive of what it actually means to be a refugee seeking to exercise legal rights in today’s world.

At issue: The right of non-criminal foreign nationals who have established a “reasonable fear” of persecution or torture if deported to apply for bond pending Immigration Court hearings on the merits of their cases. Getting a bond hearing before an Immigration Judge does not in any way guarantee release; just that the decision to detain or release on bond will be based on the individual facts and circumstances. Individuals released from detention have a much better chance of obtaining counsel and gathering the documentation necessary to win their cases. They are also much less likely to be “coerced” by DHS detention into surrendering viable claims and appeal rights.

Majority’s response: These “aliens” have neither rights nor humanity that any life-tenured GOP-appointed judge is bound to respect.

Alternative: There is a readily available alternative statutory interpretation, adopted by the 4th Circuit and the dissent, that would recognize the human and legal rights of vulnerable refugees seeking legal protection and give them hearings on continuing custody in substandard conditions (in some instances, conditions in the “DHS New American Gulag” fall well below those that would be imposed on convicted felons).

You can’t win ‘em all: The Round Table was one of many organizations filing an amicus brief on behalf of the refugees and in support of the position adopted by the 4th Circuit and the dissent. While we were unsuccessful on this one, at least we are on the “right side of history.”

Creative suggestion: Detainees should incorporate, perhaps as a pipeline company, or better yet a gun rights’ group, so that they would have legal rights and be treated as “persons” (e.g., “humans”) by the Supremes’ GOP majority.

Next steps:

Advocates should prevail on the Biden Administration to change the regulations to give this limited subclass of applicants for protection a chance to seek bond before an Immigration Judge;
Advocates should keep up the pressure on the Biden Administration and Garland to appoint better judges at EOIR: progressive practical experts, who know how to grant legal protection efficiently and fairly and who will establish appropriate legal precedents to help these cases move through the EOIR system on the merits in a timely and fundamentally fair manner consistent with due process. The length of time it takes “Withholding Only” cases to move through the Immigration Courts has lots to do with: unfair, coercive detention practices by DHS; poor judging and bad precedents at EOIR; incompetent “judicial administration” and politicized “Aimless Docket Reshuffling” @ EOIR by DOJ politicos and their EOIR “retainers.”

Long term solution:

Support and vote for progressive legislators who will revise the immigration laws to do away with the unnecessary and wasteful “New American Gulag;”
Vote progressive candidates for President and the Senate: political officials committed to putting better Federal Judges on the bench at all levels — “practical scholars” with real experience representing the most vulnerable in society and who will tirelessly enforce due process, equal protection, human rights, and fundamental fairness for all persons regardless of race, religion, or status; judges who understand and will seriously reflect on the “real life” human consequences of their decisions. Better judges for a better America!

🇺🇸Due Process Forever!

PWS

06-30-21

⚖️SUPREMES: In 5-3 Decision By Justice Gorsuch, Respondent Has Burden Of Proof On Cancellation & Loses On Ambiguous Record Of Conviction!

Pereida v. Wilkinson, U.S., 03-04-21

Here’s the link to the full decision:

https://www.supremecourt.gov/opinions/20pdf/19-438_j4el.pdf

MAJORITY: Justice Gorsuch (opinion), Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Kavanaugh

DISSENT: Justice Breyer (opinion), Justice Kagtan, Justice Sotomayor

NOT PARTICIPATING: Justice Barrett

SYLLABUS (by Court staff):

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

No. 19–438. Argued October 14, 2020—Decided March 4, 2021

Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully, a charge Mr. Pereida did not contest. Mr. Pereida sought instead to establish his eligibility for cancellation of removal, a discretionary form of relief under the Immigration and Nationality Act (INA). 8 U. S. C. §§1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonper- manent residents to prove, among other things, that they have not been convicted of specified criminal offenses. §1229b(b)(1)(C). While his proceedings were pending, Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. §28–608 (2008). Ana- lyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of re- moval, §§1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Because Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unli- censed business, and thus the conviction likely constituted a crime in- volving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. But because Mr. Pereida bore the burden of proving his eligibility for cancellation of removal, the ambiguity in the record meant he had not carried that burden and he was thus ineligible for discretionary relief.

Held: Under the INA, certain nonpermanent residents seeking to cancel

2

PEREIDA v. WILKINSON Syllabus

a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. An alien has not carried that bur- den when the record shows he has been convicted under a statute list- ing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction. Pp. 5–17.

(a) The INA squarely places the burden of proof on the alien to prove eligibility for relief from removal. §1229a(c)(4)(A). Mr. Pereida accepts his burden to prove three of four statutory eligibility requirements but claims a different rule should apply to the final requirement at issue here—whether he was convicted of a disqualifying offense. Mr. Pereida identifies nothing in the statutory text that singles out that lone requirement for special treatment. The plain reading of the text is confirmed by the context of three nearby provisions. First, the INA specifies particular forms of evidence that “shall constitute proof of a criminal conviction” in “any proceeding under this chapter,” regardless of whether the proceedings involve efforts by the government to re- move an alien or efforts by the alien to establish eligibility for relief. §1229a(c)(3)(B). Next, Congress knows how to impose the burden on the government to show that an alien has committed a crime of moral turpitude, see §§1229a(c)(3), 1227(a)(2)(A)(i), and yet it chose to flip the burden when it comes to applications for relief from removal. Fi- nally, the INA often requires an alien seeking admission to show “clearly and beyond doubt” that he is “entitled to be admitted and is not inadmissible,” §1229a(c)(2), which in turn requires the alien to demonstrate that he has not committed a crime involving moral turpi- tude, §1182(a)(2)(A)(i)(I). Mr. Pereida offers no account why a rational Congress would have placed this burden on an alien who is seeking admission, but lift it from an alien who has entered the country ille- gally and faces a lawful removal order. Pp. 5–7.

(b) Even so, Mr. Pereida contends that he can carry the burden of showing his crime did not involve moral turpitude using the so-called “categorical approach.” Applying the categorical approach, a court considers not the facts of an individual’s conduct, but rather whether the offense of conviction necessarily or categorically triggers a conse- quence under federal law. Under Mr. Pereida’s view, because a person could hypothetically violate the Nebraska statute without committing fraud—i.e., by carrying on a business without a license—the statute does not qualify as a crime of moral turpitude. But application of the categorical approach implicates two inquiries—one factual (what was Mr. Pereida’s crime of conviction?), the other hypothetical (could some- one commit that crime of conviction without fraud?). And the Ne- braska statute is divisible, setting forth multiple crimes, some of which the parties agree are crimes of moral turpitude. In cases involving

Cite as: 592 U. S. ____ (2021) 3 Syllabus

divisible statutes, the Court has told judges to determine which of the offenses an individual committed by employing a “modified” categori- cal approach, “review[ing] the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior convic- tion.” Mathis v. United States, 579 U. S. ___, ___. This determination, like many issues surrounding the who, what, when, and where of a prior conviction, involves questions of historical fact. The party who bears the burden of proving these facts bears the risks associated with failing to do so. This point is confirmed by the INA’s terms and the logic undergirding them. A different conclusion would disregard many precedents. See, e.g., Taylor v. United States, 495 U. S. 575, 600. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, see, e.g., Johnson v. United States, 559 U. S. 133, they work against the alien seeking relief from a lawful removal order. Congress can, and has, allocated the burden differently. Pp. 7– 15.

(c) It is not this Court’s place to choose among competing policy arguments. Congress was entitled to conclude that uncertainty about an alien’s prior conviction should not redound to his benefit. And Mr. Pereida fails to acknowledge some of the tools Congress seemingly did afford aliens faced with record-keeping challenges. See, e.g., §1229a(c)(3)(B). Pp. 15–17.

916 F. 3d 1128, affirmed.

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C.J.,andTHOMAS,ALITO,andKAVANAUGH,JJ.,joined. BREYER,J.,filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined. BARRETT, J., took no part in the consideration or decision of the case.

KEY QUOTE FROM DISSENT:

Finally, it makes particularly little sense to disregard this core feature of the categorical approach here. See id., at 203–204. As already noted, cancellation of removal is discretionary. Thus, when a conviction is not disqualifying under the categorical approach, the Government may still deny the noncitizen relief. If it turns out that an individual with a record like the one here in fact violated the statute in a reprehensible manner, that can be accounted for during the discretionary phase of the proceedings, when the categorical approach does not apply.

***

In my view, the Court should follow Congress’ statute. Congress has long provided that immigration courts apply- ing the INA provision here, like sentencing courts applying ACCA, must follow the categorical approach. See Mellouli, 575 U. S., at 805–806. Our cases make clear how that approach applies in a case like this one. We should follow our earlier decisions, particularly Taylor, Shepard, and John- son. And, were we to do so, ineluctably they would lead us to determine that the statutory offense of which Mr. Pereida was “convicted” is not “necessarily” a “crime involving moral turpitude.”

Because the Court comes to a different conclusion, with respect, I dissent.

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

“When in doubt, throw ‘em out,” seems to be the majority’s refrain. As pointed out by Justice Breyer, a decision that allowed Mr. Pereida, who has lived in the U.S. for a quarter of a century, to apply for cancellation of removal because of the uncertainty as to whether his 2010 conviction for “attempted criminal impersonation” under Nebraska law involved “moral turpitude,” would not have guaranteed him relief. It merely would have allowed the Immigration Judge to weigh the substantial equities that Mr. Pereida and his family had developed against his decade-old criminal conviction.

The Immigration Judge could then have decided, on the basis of a fully developed record, in the exercise of discretion whether or not Mr. Pereida merited a “second chance” in the U.S. And, of course, if the application were granted, ICE would still have the ability to appeal to the BIA, which exercises “de novo” review on questions of discretion.

There is lots that needs to be changed about our current immigration system. It’s too bad that Congress appears too deadlocked to get the job done.

PWS

03-04-21

UPDATE:

”Sir Jeffrey” Chase just reminded me that our Round Table 🛡⚔️filed an amicus brief in support of the respondent’s position in this case. Sadly, we didn’t carry the day, here! ☹️

But, we’ll be heard from again on the “categorical approach.” I guarantee it!

🇺🇸⚖️🗽Due Process Forever!

PWS

03-04-21

🏴‍☠️👎🏻ONLY THE BEGINNING: SUPREMES AGAIN INTERFERE WITH LOWER COURT RULING IN AID OF TRUMP’S CENSUS UNDERCOUNT SCHEME! — Communities Of Color, Democrats Likely To Be Screwed By Trump/GOP Scheme!

https://www.usatoday.com/story/news/politics/2020/10/13/2020-census-supreme-court-lets-administration-end-head-count-now/5975298002/

Richard Wolf reports for USA Today:

WASHINGTON – The Supreme Court on Tuesday temporarily allowed the Trump administration to end its 2020 census count earlier than planned, a move that could result in undercounting racial and ethnic minorities and others in hard-to-reach communities.

The Commerce Department had asked the justices to block a lower court ruling that barred the administration from stopping the head count on Oct. 5. The administration had sought to stop counting in order to determine the number of House seats and electoral votes each state gets for the coming decade by Dec. 31, before Trump might have to leave office.

While the decision was unsigned, Associate Justice Sonia Sotomayor registered her dissent. She said “meeting the deadline at the expense of the accuracy of the census is not a cost worth paying.”

. . . .

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

So, two months wouldn’t be long enough for the USG to get the results to Trump? Gimme a break! And, since when does the most lawless Administration in history lose sleep about missing a statutory deadline? Incredible! But, hardly unexpected from a Court that “belongs” to a political party and makes little attempt to hide it.

Interestingly, however, Justices Breyer and Kagan also “took the day off” on this one. That left Justice Sotomayor as the sole defender of an honest census count.

Justice Sotomayor’s dissent says it all:

While the decision was unsigned, Associate Justice Sonia Sotomayor registered her dissent. She said “meeting the deadline at the expense of the accuracy of the census is not a cost worth paying.”

“The harms caused by rushing this year’s census count are irreparable,” Sotomayor wrote. “And respondents will suffer their lasting impact for at least the next 10 years.”

Of course, the “irreparable harm” will skew things illegally in favor of the GOP for the coming decade. But, that’s the point of a politically weaponized Supremes! And, you can bet that Justice Barrett will do everything possible to advance the GOP program of shafting communities of color and majority-Democrat jurisdictions while seeking to maintain GOP minority control of government!

Vote ‘Em out, vote ‘Em out! At every level of Government, the GOP and their ideological judges are committed to unrelenting corruption, inequality, destroying democracy, and forcing an extreme right-wing agenda on the majority of Americans!

PWS

10-13-20

SUPREMES’ DISINGENUOUS ENABLING OF REGIME’S ILLEGAL & DANGEROUS WHITE NATIONALIST ANTI-IMMIGRANT AGENDA AIMED AT TERRORIZING COMMUNITIES OF COLOR WILL HELP SPREAD THE PANDEMIC — BONUS COVERAGE: My Latest Mini-Essay: “SUPREME COMPLICITY SPELLS SUPREME DANGER FOR ALL AMERICANS” ☠️☠️☠️☠️☠️👎🏻

https://www.theguardian.com/world/2020/mar/29/i-have-a-broken-heart-trump-policy-has-immigrants-backing-away-from-healthcare-amid-crisis?CMP=Share_iOSApp_Other

Maanvi Singh reports for The Guardian:

As the coronavirus spread through California and the economic fallout of the pandemic began to hit Patricia’s community in the rural Coachella Valley, she said a new Trump administration policy had layered worries upon her worries.

The so-called “public charge” rule, which allows the government to deny green cards and visas to immigrants who rely on public benefits, went into effect in late February, just as the first cases of Covid-19 were being reported across the US.

“Now, we are in panic,” said Patricia, a 46-year-old mother of three and daughter of two elderly parents. The Guardian is not using Patricia’s real name to protect her and her undocumented family members.

Patricia’s father, who stopped seeking treatment for his pancreatic cancer after a lawyer advised that using some public medical benefits could affect his bid to gain legal status, is among the most at-risk for complications from contracting the coronavirus. So is her mother, who is diabetic.

“I have a broken heart,” she said. “We’ve been told that if we want papers to feel secure and calm here, there’s a tradeoff.”

‘I won’t survive’: Iranian scientist in US detention says Ice will let Covid-19 kill many

Although the US Citizenship and Immigration Services last week announced under pressure from lawmakers and advocacy groups that immigrants who undergo testing or treatment for Covid-19 would not be denied visas or green cards under the new rule, fear and confusion are stopping people from seeking medical care. In the midst of a pandemic, health and legal experts say that policies designed to exclude vulnerable immigrant communities from medical care are fueling a public health disaster.

“The community doesn’t trust the government right now.” said Luz Gallegos, who directs the Todec Legal Center in southern California. As Covid-19 spreads across the state, much of the center’s efforts recently have been dedicated to reassuring immigrants that they can and should take advantage of health programs if they can.

Patricia, who went to Todec for advice, said even though she’s been told that the public charge rule doesn’t apply to those who want to get tested for the coronavirus, she can’t help but worry. “With this president, you can never know,” she said. When immigration policies can change overnight, she said, “how can we have trust?”

Even before the public charge rules went into effect, a UCLA analysis found that more than 2 million Californians enrolled in the state’s public food and medical benefits programs could be affected by the rule, which allows immigration officials to turn away those seeking green cards and visas based on who are “likely to be a public charge”.

“We can’t stop the spread of disease while denying health coverage to people,” said Ninez Ponce, director of the UCLA Center for Health Policy Research. “It’s irresponsible public health policy.”

Although several groups of immigrants, including asylum-seekers and refugees, are exempt from the rule, the complicated, 217-page regulation has a “chilling effect”, Ponce said, driving people to withdraw from social services even if they don’t have to.

. . . .

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

Read the rest of Maanvi’s report at the link.

SUPREME COMPLICITY SPELLS SUPREME DANGER FOR ALL AMERICANS

By Paul Wickham Schmidt

Exclusive for Courtside

April 3, 2020

So, let’s be clear about what happened here with the so-called public charge regulations. The expert public commentary opposing this unlawful and unnecessary (i/o/w “stupid and malicious”) change in the regulations was overwhelming.

The vast bulk of the 266,077 public comments received were in opposition!https://immigrationcourtside.com/2019/12/06/complicit-9th-circuit-judges-continue-to-coddle-trump-this-time-legal-immigrants-are-the-victims-of-trumps-judicially-enabled-white-nationalist-agenda-judges-jay-bybee-sandra-i/

Support for the change outside of White Nationalist nativist “fringies” was negligible and had no basis in fact.

The Administration’s rationale, sacrificing health and welfare and screwing immigrants for some small fabricated savings that failed to consider the offsetting harm to the public and individuals, was facially absurd.

A U.S. District Judge in New York immediately and properly found the regulation change to be unlawful and enjoined it. The Second Circuit upheld that injunction. https://immigrationcourtside.com/2020/01/08/finally-an-appeals-court-with-some-guts-2d-circuit-stands-up-to-regime-on-public-charge-injunction/

In the meantime, however, Appellate Judges in the 9th and 4th Circuits had gone “belly up” for Trump. https://immigrationcourtside.com/2019/12/10/complicit-court-update-4th-circuit-joins-9th-in-tanking-for-trump-on-public-charge-rule-judges-harvie-wilkinson-paul-niemeyer-go-belly-up-for-trump-while-judge-pame/

Trump Solicitor General Francisco fabricated an “emergency” reason for the Supremes to intervene in a process that was ongoing before the District Court in New York. The “J.R. Five” voted to be Francisco’s toadies and stay the injunction. The other justices voted to uphold the injunction and require the Trump regime to abide by the law and normal judicial procedures. https://immigrationcourtside.com/2020/02/15/linda-greenhouse-nyt-supremely-complicit-meanness-has-become-a-means-to-the-end-of-our-republic-for-j-r-his-gop-judicial-activists-on-the-supremes-what-if-they-had-to-wal/

The J.R. Five’s “toadyism for Trump” was so obvious that in a later related case Justice Sonia Sotomayor took the unusual step of filing a sharply worded dissent “outing” her colleagues for consistently “tilting” the process in favor of one party — Trump. https://immigrationcourtside.com/2020/02/22/complicity-watch-justice-sonia-sotomayor-calls-out-men-in-black-for-perverting-rules-to-advance-trump-miller-white-nationalist-nativist-immigration-agenda/

Then, the “real emergency” (as opposed to Francisco’s fabricated one) predicted by the health officials who had opposed the regulation change occurred. Now, immigrant families who often form the backbone of our “essential workforce” are at risk and they, in turn, will unavoidably spread the risk. Americans, citizens, residents, documented, undocumented, will unnecessarily die because the J.R. Five were derelict in their duties.

The truth is very straightforward: “The coronavirus pandemic is ‘Exhibit A for why the public charge rule is stupid’ said Almas Sayeed, at the California Immigrant Policy Center.” Apparently, “Exhibit A” was too deep for the “J.R. Five” to grasp.

The Constitution actually doesn’t enable the Executive to promulgate irrational policies that contradict both the best science and endanger the public health and welfare to achieve openly racist and xenophobic political goals. “Stupidity based on racism and ignorance” has no place in our Federal Government.

As Mark Joseph Stern so clearly said in Slate:

Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants.

COMPLICITY WATCH: Justice Sonia Sotomayor Calls Out “Men In Black” For Perverting Rules To Advance Trump/Miller White Nationalist Nativist Immigration Agenda!

“Stupid” actually means “illegal” in this and most other cases. That such an an obvious concept is over the heads of the ideologically biased “J.R. Five” should give us all great pause. The next time these folks decide to elevate the “stupid” and the “racist” over “rational, legal, and humane,” it could be YOUR life and future going down their drain.

If we continue to empower a regime that elevates poorly qualified individuals who have lost any sense of human values and common decency they might have possessed to life tenure in the highest courts of our land, there will be no end to the avoidable human disasters, unnecessary suffering, and tragedies that will ensue.

We need regime change in November! That won’t change the composition and qualifications of the Federal Judiciary overnight. But, it will be an absolutely necessary start toward a Government and a judiciary that understand and respect the Constitution, the rule of law, and the individual rights and human dignity of all persons before our laws. In other words, due process and equal justice for all.

Vote like you life depends on it. Because, it does!

Due Process Forever! Complicit Courts Never!

PWS

03-30-20

WASHPOST: TENS OF THOUSANDS OF DACA RECIPIENTS SERVE ON THE FRONT LINES OF OUR PANDEMIC RESPONSE — Trump & His Supremes Add Insult To Injury! — America’s New “Dred Scottifyers”

From the WashPost Editorial Board:

https://www.washingtonpost.com/opinions/thousands-of-health-care-workers-are-at-risk-of-being-deported-trump-could-save-them/2020/03/30/834b533a-72ae-11ea-87da-77a8136c1a6d_story.html

BEFORE DAWN on Saturday morning, Aldo Martinez, a paramedic in Fort Myers, Fla., responded with his ambulance crew to a man who, having just been diagnosed with covid-19, was having a panic attack. The man didn’t know that Mr. Martinez, 26 years old, is an undocumented immigrant; nor that he is a “dreamer”; nor that his temporary work permit under an Obama-era program has been targeted by President Trump.

The covid-19 patient was not aware that Mr. Martinez’s ability to remain in the United States, as he has since his parents brought him here from Mexico at age 12, now hangs in the balance as the Supreme Court weighs the future of Deferred Action for Childhood Arrivals, the program known as DACA. What the man did know was that Mr. Martinez, calm and competent, spent 45 minutes helping to soothe him, explaining the risks and symptoms and how to manage them.

[[Full coverage of the coronavirus pandemic]]

Some 27,000 dreamers are health-care workers; some, like Mr. Martinez, are on the front lines, grappling with a deadly pandemic. They are doctors, nurses, intensive care unit staff and EMTs trained to respond quickly to accidents, traumas and an array of other urgent medical needs.

Until now, because of DACA, they have been shielded from deportation and allowed to work legally. Their time may be running out.

The Supreme Court heard oral arguments in the fall on the Trump administration’s attempt to rescind the program; it is expected to rule in the coming months. If, as appears likely, the court’s conservative majority sides with the administration, Mr. Martinez and thousands of other health-care workers would lose their work permits and jobs, and face the threat of deportation. So would another 700,000 DACA recipients — food prep workers, teachers and tutors, government employees, and students, including those enrolled in medical programs.

That would be catastrophic, and not just for the dreamers themselves, young people in their 20s and 30s who have grown up here. It would also be catastrophic for the United States.

Mr. Trump could halt the threat to dreamers with the stroke of a pen, by issuing an executive order. He has referred to DACA recipients as “some absolutely incredible kids” and promised that they “shouldn’t be very worried” owing to his “big heart.” But, so far, he has taken every possible step to chase them out, and his administration has made clear that if it prevails in the Supreme Court, dreamers will be subject to deportation.

That would give Mr. Martinez about four months. His current DACA status expires Aug. 5, and it would probably not be renewable if the administration prevails.

[[The Opinions section is looking for stories of how the coronavirus has affected people of all walks of life. Write to us.]]

“I don’t want people thanking me because I expose myself to covid — I’m not here for the glamour of it,” Mr. Martinez told us. “The principle is when people are having an emergency, they don’t have safety or security — you’re there to provide that for them in a time of need.”

Now it’s a time of need for Mr. Martinez himself, and hundreds of thousands of other dreamers like him. The country needs them as never before. Will Mr. Trump step up to provide them with safety and security?

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

Let’s be clear about responsibility for this unconscionable self-inflicted looming disaster. There was an exceptionally well-justified nationwide injunction in effect against the Trump regime’s lawless attempt to terminate DACA, no “Circuit split,” and absolutely no emergency reason for the Supremes to take the DACA case. None, unless they were going to summarily affirm the lower court injunction. Yet, they went out of their way to intervene in an apparent effort by the “J.R. Five” to advance the regime’s gratuitously cruel and wasteful White Nationalist, racially motivated immigration and anti-human rights agenda.

At oral argument, although acknowledging the sympathetic circumstances, the GOP Justices showed little genuine concern for the human and legal consequences facing the “Dreamers” if the “J.R. Five,” as most expect them to do, “pull the plug” on these kids. Things like the consequences of loss of work authorization or permission to study and having to live your life in constant fear of arrest and removal seemed to go over the heads of the intentionally tone-deaf and condescending GOP majority.

At oral argument, Justice Sonia Sotomayor said it very clearly: “This is not about the law,” she said. “This is about our choice to destroy lives.” https://www.nytimes.com/2019/11/12/us/supreme-court-dreamers.html?referringSource=articleShare. Her GOP colleagues, not for the first or last time, appeared anxious to tune out “the truth she spoke” and instead to please the regime’s overlords by unleashing the cruelty and wanton destruction of humanity.

Ever since their horrible “cop out” in the so-called “Travel Ban cases,” J.R. and his GOP buddies have been enabling a toxically unconstitutional invidiously motivated attack on the due process rights and human dignity of some of America’s most vulnerable “persons.” Often, they bend the normal rules applicable to everyone else “on demand” from “Trump uber-toady” Solicitor General Noel Francisco. They have played a disgraceful and cowardly role in the regime’s, largely successful to date, efforts to “Dred Scottify” and dehumanize the most vulnerable among us.

As Mark Joseph Stern very cogently said in Slate:

Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.

Life tenure makes these guys effectively unaccountable for their immoral and illegal actions. But, history will not forget where they stood in the face of bigotry, racism, cruelty, and tyranny.

A great democracy deserves and needs better from its life-tenured judiciary. Much better! The necessary shift from kakistocracy to democracy will require “regime change” in both the Executive and the Senate. November must be the starting place if we wish to survive as a democratic republic!

Due Process Forever! Complicit Courts Never!

PWS

03-31-20

THE “GOOD GUYS” FINALLY WIN ONE @ THE SUPREMES: Judicial Review Exists For Application Of Law To Settled Facts In Immigration Cases (Here “Equitable Tolling”) — GUERRERO-LASPRILLA v. BARR (7-2, Justice Breyer, Majority Opinion)

GUERRERO-LASPRILLA v. BARR, No. 18-776, 03-23-20

https://www.supremecourt.gov/opinions/19pdf/18-776_8759.pdf

MAJORITY: BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined.

DISSENT: THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined as to all but Part II–A–

SYLLABUS BY REPORTER OF DECISIONS:

The Immigration and Nationality Act provides for judicial review of a final Government order directing the removal of an alien from this country. 8 U. S. C. §1252(a). Section 1252(a)(2)(C) limits the scope of that review where the removal rests upon the fact that the alien has committed certain crimes. And §1252(a)(2)(D), the Limited Review Provision, says that in such instances courts may consider only “con- stitutional claims or questions of law.”

Petitioners Guerrero-Lasprilla and Ovalles, aliens who lived in the United States, committed drug crimes and were subsequently ordered removed (Guerrero-Lasprilla in 1998 and Ovalles in 2004). Neither filed a motion to reopen his removal proceedings “within 90 days of the date of entry of [the] final administrative order of removal.” §1229a(c)(7)(C)(i). Nonetheless, Guerrero-Lasprilla (in 2016) and Ovalles (in 2017) asked the Board of Immigration Appeals to reopen their removal proceedings, arguing that the 90-day time limit should be equitably tolled. Both petitioners, who had become eligible for dis- cretionary relief due to various judicial and Board decisions years after their removal, rested their claim for equitable tolling on Lugo- Resendez v. Lynch, 831 F. 3d 337, in which the Fifth Circuit had held that the 90-day time limit could be equitably tolled. The Board denied both petitioners’ requests, concluding, inter alia, that they had not demonstrated the requisite due diligence. The Fifth Circuit denied their requests for review, holding that, given the Limited Review Pro-

——————

*Together with No. 18–1015, Ovalles v. Barr, Attorney General, also on certiorari to the same court.

vision, it “lack[ed] jurisdiction” to review petitioners’ “factual” due dil- igence claims. Petitioners contend that whether the Board incorrectly applied the equitable tolling due diligence standard to the undisputed facts of their cases is a “question of law” that the Provision authorizes courts of appeals to consider.

Held: Because the Provision’s phrase “questions of law” includes the ap- plication of a legal standard to undisputed or established facts, the Fifth Circuit erred in holding that it had no jurisdiction to consider petitioners’ claims of due diligence for equitable tolling purposes. Pp. 3–13.

(a) Nothing in the statute’s language precludes the conclusion that Congress used the term “questions of law” to refer to the application of a legal standard to settled facts. Indeed, this Court has at times re- ferred to the question whether a given set of facts meets a particular legal standard as presenting a legal inquiry. See Neitzke v. Williams, 490 U. S. 319, 326 (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law”); Mitchell v. Forsyth, 472 U. S. 511, 528, n. 9 (“[T]he appealable issue is a purely legal one: whether the facts alleged . . . support a claim of violation of clearly established law”); cf. Nelson v. Montgomery Ward & Co., 312 U. S. 373, 376 (“The effect of admitted facts is a question of law”). That judicial usage indi- cates that the statutory term “questions of law” can reasonably encom- pass questions about whether settled facts satisfy a legal standard. The Court has sometimes referred to such a question as a “mixed ques- tion of law and fact.” See, e.g., U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___. And the Court has often used the phrase “mixed questions” in determining the proper standard for appellate re- view of a district, bankruptcy, or agency decision that applies a legal standard to underlying facts. But these cases present no such question involving the standard of review. And, in any event, nothing in those cases, nor in the language of the statute, suggests that the statutory phrase “questions of law” excludes the application of law to settled facts. Pp. 4–5.

(b) A longstanding presumption, the statutory context, and the stat- ute’s history all support the conclusion that the application of law to undisputed or established facts is a “questio[n] of law” within the meaning of §1252(a)(2)(D). Pp. 5–11.

A “well-settled” and “strong presumption,” McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496, 498, “favor[s] judicial review of administrative action,” Kucana v. Holder, 558 U. S. 233, 251. That presumption, which can only be overcome by “‘“clear and convincing evidence” ’ ” of congressional intent to preclude judicial review, Reno v. Catholic Social Services, Inc., 509 U. S. 43, 64, has consistently been applied to immigration statutes, Kucana, 558 U. S., at 251. And thereis no reason to make an exception here. Because the Court can rea- sonably interpret the statutory term “questions of law” to encompass the application of law to undisputed facts, and given that a contrary interpretation would result in a barrier to meaningful judicial review, the presumption indicates that “questions of law” does indeed include mixed questions. Pp. 6–7.
(2) The Limited Review Provision’s immediate statutory context belies the Government and the dissent’s claim that “questions of law” excludes the application of law to settled facts. The Provision is part of §1252, which also contains §1252(b)(9), the “zipper clause.” The zip- per clause is meant to “consolidate judicial review of immigration pro- ceedings into one action in the court of appeals.” INS v. St. Cyr, 533 U. S. 289, 313. The zipper clause’s language makes clear that Con- gress understood the statutory term “questions of law and fact,” to in- clude the application of law to facts. One interpretation of the zipper clause at the very least disproves the Government’s argument that Congress consistently uses a three-part typology, such that “questions of law” cannot include mixed questions. And another interpretation— that “questions of law” in the zipper clause includes mixed questions— directly supports the holding here and would give the term the same meaning in the zipper clause and the Limited Review Provision. Pp. 7–8.
(3) The Provision’s statutory history and relevant precedent also support this conclusion. The Provision was enacted in response to INS v. St. Cyr, in which the Court interpreted the predecessor of §1252(a)(2)(C) to permit habeas corpus review in order to avoid the serious constitutional questions that would arise from a contrary in- terpretation, 533 U. S., at 299–305, 314. In doing so, the Court sug- gested that the Constitution, at a minimum, protected the writ of ha- beas corpus “ ‘as it existed in 1789.’ ” Id., at 300–301. The Court then noted the kinds of review that were traditionally available in a habeas proceeding, which included “detentions based on errors of law, includ- ing the erroneous application or interpretation of statutes.” Id., at 302 (emphasis added). Congress took up the Court’s invitation to “provide an adequate substitute [for habeas review] through the courts of ap- peals,” id., at 314, n. 38. It made clear that the limits on judicial review in various §1252 provisions included habeas review, and it consoli- dated virtually all review of removal orders in one proceeding in the courts of appeals. Congress also added the Limited Review Provision, permitting review of “constitutional claims or questions of law.” Con- gress did so, the statutory history strongly suggests, because it sought an “adequate substitute” for habeas in view of St. Cyr’s guidance. If “questions of law” in the Provision does not include the misapplication of a legal standard to undisputed facts, then review would not includean element that St. Cyr said was traditionally reviewable in habeas. Lower court precedent citing St. Cyr and legislative history also sup- port this conclusion. Pp. 8–11.
(c) The Government’s additional arguments in favor of its contrary reading are unpersuasive. More than that, the Government’s inter- pretation is itself difficult to reconcile with the Provision’s basic pur- pose of providing an adequate substitute for habeas review. Pp. 11– 13.
No. 18–776, 737 Fed. Appx. 230; No. 18–1015, 741 Fed. Appx. 259, va- cated and remanded.,

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

Congrats to Chief Justice Roberts and Justices Gorsuch and Kavanaugh, admittedly frequent “pincushions” here at “Courtside” for often voting to uphold injustice and authoritarianism in immigration cases, for “seeing the light” and voting with the “forces of justice” on this one. Justices Thomas and Alito, perhaps predictably, continue to side with the “forces of darkness and oppression.”

As to the impact, just offhand I would hazard a guess that most Convention Against Torture (“CAT”) cases involving those whose crimes make them mandatorily ineligible for asylum and withholding involve the application of law (Is it “torture?” Will the government “acquiesce?” Is it “probable?”) to established facts (“Individuals are frequently beaten, starved, and raped in detention while the government looks the other way”). Immigration Judges, driven by inappropriate “production quotas,” officially sanctioned anti-migrant attitudes, and intentionally misleading “politicized precedents” where the migrant always loses no matter how strong their case, too often get these questions wrong. Sometimes, “dead wrong!”

Also, given the delays in Immigration Courts, most resulting from politically-motivated “Aimless Docket Reshuffling” within EOIR or just plain administrative incompetence under an overwhelming, largely self-created backlog, the issue of “equitable tolling” regularly comes up. Since the DOJ politicos and the OIL litigators “hate equitable tolling,” the BIA almost always strains to deny such claims no matter how well-documented and meritorious. Indeed, I suspect that the unavailability of effective judicial review by “real courts” has contributed to the disturbingly low quality of the BIA’s work in cases like this.

However welcome, and it certainly is, this is just a “limited fix” in what remains a blatantly unconstitutional and dysfunctional “court” system (where the courts are not actually fair and impartial tribunals) that threatens lives and American institutions every day it is allowed to continue to operate by the Supremes and the other Article IIIs, not to mention a feckless Congress.

Due Process Forever!

PWS

03-23-20

PROFILE IN JUDICIAL COWARDICE: ARTICLE III’S DERELICTION OF DUTY LEAVES BRAVE ASYLUM APPLICANTS AND THEIR COURAGEOUS ATTORNEYS DEFENSELESS AGAINST RACIST ONSLAUGHT BY TRUMP ADMINISTRATION! – “NDPA” Stalwarts Laura Lynch & Leidy Perez-Davis Blog Daily About What’s REALLY Happening At The Border As A Result Of JUDICIAL MALFEASANCE By Life-Tenured Federal Appellate Judges Who Were Supposed To Protect Our Rights, But Are Failing To Do So!

Here’s their blog from the “front lines” of the New Due Process Army’s battle to save lives in South Texas, updated daily:

https://thinkimmigration.org/blog/2019/09/16/due-process-disaster-in-the-making-a-firsthand-look-at-the-port-courts-in-laredo-and-brownsville/

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It’s beyond disgusting! Life-tenured judges who should know better becoming “Modern Day Jim Crows!” What truly horrible, negative “role models” for younger attorneys fighting for the rights of the most vulnerable and to uphold our Constitutional system.

Speaking of good role models (in addition, of course, to Laura and Leidy, who are among the “best ever”), Justices Sotomayor and Ginsburg should be congratulated for having the courage to speak out forcefully in Barr v. East Bay Sanctuary Covenant on the “right side of history” and against their colleagues’ disgraceful dereliction of duty and betrayal of their oaths to uphold the Constitution against all enemies, foreign and domestic.

And, there have been few greater enemies of the U.S. Constitution and the true “rule of law” than Trump and his band of political, bureaucratic, and judicial sycophants!

Due Process Forever, Cowardly Judging Never!

PWS

09-20-19

SUPREME TANK: COMPLICIT COURT ENDS U.S. ASYLUM PROTECTIONS BY 7-2 VOTE — Endorses Trump’s White Nationalist Racist Attack On Human Rights & Eradication Of Refugee Act Of 1980 — On 09-11-19, Supremes Celebrate By Joining Trump’s Attack On America & Humanity! — Only Justices Ginsburg & Sotomayor Have Guts To Stand Up For Constitution & Rule Of Law!

Death On The Rio Grande — Supremes Sign Death Warrants For Vulnerable Refugees, Trash Refugee Act of 1980

19a230_k53l

Cite as: 588 U. S. ____ (2019) 1 SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 19A230 _________________
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL. v. EAST BAY SANCTUARY COVENANT, ET AL.
ON APPLICATION FOR STAY [September 11, 2019]
The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. The district court’s July 24, 2019 order granting a preliminary injunction and September 9, 2019 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, dissenting from grant of stay.
Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution. Although this Nation has long kept its doors open to refugees—and although the stakes for asylum seekers could not be higher—the Government implemented its rule without first providing the public notice and inviting the public input generally required by law. After several organizations representing immi- grants sued to stop the rule from going into effect, a federal district court found that the organizations were likely to prevail and preliminarily enjoined the rule nationwide. A

2 BARR v. EAST BAY SANCTUARY COVENANT SOTOMAYOR, J., dissenting
federal appeals court narrowed the injunction to run only circuit-wide, but denied the Government’s motion for a complete stay.
Now the Government asks this Court to intervene and to stay the preliminary decisions below. This is an extraordinary request. Unfortunately, the Court acquiesces. Because I do not believe the Government has met its weighty burden for such relief, I would deny the stay.
The Attorney General and Secretary of Homeland Security promulgated the rule at issue here on July 16, 2019. See 84 Fed. Reg. 33829. In effect, the rule forbids almost all Central Americans—even unaccompanied children—to apply for asylum in the United States if they enter or seek to enter through the southern border, unless they were first denied asylum in Mexico or another third country. Id., at 33835, 33840; see also 385 F. Supp. 3d 922, 929–930 (ND Cal. 2019).
The District Court found that the rule was likely unlawful for at least three reasons. See id., at 938–957. First, the court found it probable that the rule was inconsistent with the asylum statute, 94 Stat. 105, as amended, 8 U. S. C. §1158. See §1158(b)(2)(C) (requiring that any regulation like the rule be“consistent”with the statute). Section 1158 generally provides that any noncitizen “physically present in the United States or who arrives in the United States . . . may apply for asylum.” §1158(a)(1). And unlike the rule, the District Court explained, the statute provides narrow, carefully calibrated exceptions to asylum eligibility. As relevant here, Congress restricted asylum based on the possibility that a person could safely resettle in a third country. See §1158(a)(2)(A), (b)(2)(A)(vi). The rule, by contrast, does not consider whether refugees were safe or resettled in Mexico—just whether they traveled through it. That blunt approach, according to the District Court, rewrote the statute. See 385 F. Supp. 3d, at 939– 947, 959.

Cite as: 588 U. S. ____ (2019) 3
SOTOMAYOR, J., dissenting
Second, the District Court found that the challengers would likely prevail because the Government skirted typical rulemaking procedures. Id., at 947–951. The District Court noted “serious questions” about the rule’s validity because the Government effected a sea change in immigration law without first providing advance notice and opportunity for public comment. Id., at 930; see also 5 U. S. C. §553. The District Court found the Government’s purported justifications unpersuasive at the preliminary-injunction stage. 385 F. Supp. 3d, at 948–951 (discussing statutory exceptions to notice-and-comment procedures).
Last, the District Court found the explanation for the rule so poorly reasoned that the Government’s action was likely arbitrary and capricious. See id., at 951–957; 5 U. S. C. §706. On this score, the District Court addressed the Government’s principal justifications for the rule: that failing to seek asylum while fleeing through more than one country “raises questions about the validity and urgency” of the asylum seeker’s claim, 84 Fed. Reg. 33839; and that Mexico, the last port of entry before the United States, offers a fea- sible alternative for persons seeking protection from persecution, id., at 33835, 33839–33840. The District Court examined the evidence in the administrative record and explained why it flatly refuted the Government’s assumptions. 385 F. Supp. 3d, at 951–957. A “mountain of evidence points one way,” the District Court observed, yet the Government “went the other—with no explanation.” Id., at 955.
After the District Court issued the injunction, the Ninth Circuit declined the Government’s request for a complete stay, reasoning that the Government did not make the required “ ‘strong showing’ ” that it would likely succeed on the merits of each issue. ___ F. 3d ___ (2019), 2019 WL 3850928, *1 (quoting Hilton v. Braunskill, 481 U. S. 770, 776 (1987)). Narrowing the injunction to the Circuit’s borders, the Ninth Circuit expedited the appeal and permitted

4 BARR v. EAST BAY SANCTUARY COVENANT SOTOMAYOR, J., dissenting
the District Court to consider whether additional facts would warrant a broader injunction. 2019 WL 3850928, *2– *3.
The lower courts’ decisions warrant respect. A stay pending appeal is “extraordinary” relief. Williams v. Zbaraz, 442 U. S. 1309, 1311 (1979) (Stevens, J., in chambers); see also Maryland v. King, 567 U.S. 1301, 1302 (2012) (ROBERTS, C. J., in chambers) (listing stay factors). Given the District Court’s thorough analysis, and the serious questions that court raised, I do not believe the Government has carried its “especially heavy” burden. Packwood v. Senate Select Comm. on Ethics, 510 U. S. 1319, 1320 (1994) (Rehnquist, C. J., in chambers). The rule here may be, as the District Court concluded, in significant tension with the asylum statute. It may also be arbitrary and capricious for failing to engage with the record evidence contradicting its conclusions. It is especially concerning, moreover, that the rule the Government promulgated topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere—without affording the public a chance to weigh in.
Setting aside the merits, the unusual history of this case also counsels against our intervention. This lawsuit has been proceeding on three tracks: In this Court, the parties have litigated the Government’s stay request. In the Ninth Circuit, the parties are briefing the Government’s appeal. And in the District Court, the parties recently participated in an evidentiary hearing to supplement the record. In- deed, just two days ago the District Court reinstated a na- tionwide injunction based on new facts. See East Bay Sanc- tuary Covenant v. Barr, No. 4:19–cv–4073, Doc. 73 (ND Cal., Sept. 9, 2019). Notably, the Government moved to stay the newest order in both the District Court and the Ninth Circuit. (Neither court has resolved that request, though the Ninth Circuit granted an administrative stay to allow further deliberation.) This Court has not considered

Cite as: 588 U. S. ____ (2019) 5
SOTOMAYOR, J., dissenting
the new evidence, nor does it pause for the lower courts to resolve the Government’s pending motions. By granting a stay, the Court simultaneously lags behind and jumps ahead of the courts below. And in doing so, the Court side-steps the ordinary judicial process to allow the Government to implement a rule that bypassed the ordinary rulemaking process. I fear that the Court’s precipitous action today risks undermining the interbranch governmental processes that encourage deliberation, public participation, and transparency.
***
In sum, granting a stay pending appeal should be an “extraordinary” act. Williams, 442 U. S., at 1311. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. See Trump v. East Bay Sanc- tuary Covenant, 586 U. S. ___ (2018). I regret that my colleagues have not exercised the same restraint here. I respectfully dissent.

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Justice Sotomayor’s dissent says it all, but, alas, in vain.

09-11-19 will be remembered as the day that justice, human rights, and human decency died in America!

Shame on Justices Breyer and Kagan for “going along to get along” with the dismantling of the Refugee Act of 1980. The “blood of the innocents” will be on their hands and the hands of their five colleagues.

The “Dred Scottification” (or “dehumanization”) of immigrants, Latinos, and other minorities that Justice Breyer once predicted, yet lacked the guts to speak out against in this case, is now in full swing. It will increase unabated, now that the Supremes’ sellout to authoritarian racism is assured. And don’t expect “Moscow Mitch” and his gang of toadies to put up any opposition.

The American justice system has been dismantled. But history will remember the roles of each of those “Black Robed Cowards” who participated in its demise.

With this atrocious decision, the Supremes have basically made themselves irrelevant to the battle for fairness and individual rights under the Constitution. As I have suggested before, self-created irrelevance might come back to haunt them.

PWS

09-11-19

PROFESSOR CORI ALONSO-YODER EXPLAINS NIELSEN v. PREAP (Indefinite Immigration Detention)

https://www.gwlr.org/defining-the-in-nielsen-v-preap-the-court-relies-on-language-arts-to-justify-detention-of-immigrants/

Nielsen v. Preap, 586 U.S. ___ (2019) (Alito, J.).
Response by Cori Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2018)
Slip Opinion | SCOTUSblog

Defining “the”: In Nielsen v. Preap the Court relies on language arts to justify detention of immigrants

What does “when” mean? Is it evident what the definition of “the” is? If you are generally comfortable that these words are clear and unlikely to generate controversy, please spare a few moments to consider the Court’s recent opinion in Nielsen v. Preap.¹

At issue in the case was the meaning of 8 U.S.C. § 1226, a provision that addresses the detention and apprehension of noncitizens.²The titular respondent, Mony Preap, represented a class of individuals certified in the District Court for the Northern District of California whose case was joined to a separate class action out of the Western District of Washington (collectively, “the respondents”). Preap, a lawful permanent resident of the U.S., was detained by immigration officials in 2013, seven years after he had been released from criminal custody. Preap’s claim on behalf of the class challenged the government’s denial of an opportunity to seek bail under § 1226(c)(1), the so-called mandatory detention provision of 8 U.S.C. Under that provision, the Secretary of Homeland Security (“the Secretary”) “shall take into custody” certain categories of individuals who fall within four subsections set out at § 1226(c)(1)(A)–(D). Further, § 1226(c)(2) limits the opportunity of those described in section (c)(1) to seek release on bail to only a small category of individuals whose release is necessary for witness protection or cooperation with an investigation.³

Perhaps the only point on which all parties to Preap agreed was that the (c)(2) exception was not at issue here. Instead, Preap et al. argued that § 1226(c) was wholly inapplicable to them, and that their immigration proceedings should instead be viewed under 8 U.S.C. § 1226(a) which establishes the Secretary’s discretionary detention authority while also providing that she “may release the alien on . . .bond . . .or [] conditional parole.”⁴ While the respondents did not dispute that they fell under one of the categories set out at § 1226(c)(1)(A)–(D) (describing individuals who have committed certain crimes, who have engaged in certain terrorist activities, or who share certain family relationships with those who have engaged in terrorist activities), they argued before the lower courts that the description of whom is governed by § 1226 includes additional modifying language outside of the (A) through (D) subparagraphs.

Namely, the respondents argued that those subsections flow to and incorporate the remainder of the statutory language at (c)(1) which states that, “[t]he [Secretary] shall take into custody any alien who – [sets forth the classifications at (c)(1)(A)–(D)] when the alien is released.”⁵ Because the respondents were not detained until years after they were released from criminal custody, they contended that—and the lower courts up through the Ninth Circuit Court of Appeals agreed—they were not governed by § 1226(c). This decision resulted in a circuit split with four other Courts of Appeals, leading the Supreme Court to grant review.

In a 5–4 decision authored by Justice Alito, the Court applies a theory of statutory construction heavily reliant on grammar and dictionary definitions to hold that the Ninth Circuit’s reading of § 1226(c) is not supported in the plain language of the statute. In a highly pedantic analysis likely to evoke images of AP English for some, the Court concludes, “[s]ince an adverb cannot modify a noun, § 1226(c)(1)’s adverbial clause ‘when . . .released’ does not modify the noun ‘alien,’ which is modified instead by the adjectival clauses appearing in subparagraphs (A)–(D).”⁶ Confident that the “‘rules of grammar govern’ statutory interpretation ‘unless they contradict legislative intent or purpose’”⁷ the Court proceeds to the dictionary to support its construction of § 1226(c). In holding that the respondents are brought under the authority of § 1226(c) the Court looks to the Webster’s definition of “describe” to discern its meaning. In so doing, the Court finds that the provision at (c)(2) narrows the opportunities for individuals “described” in (c)(1) to be considered for release to the exception for witness protection. The Court then finds support in Merriam-Webster’s definition of “the” to establish that (c)(1)’s reference to “when the alien is released” refers to the definite categories listed in (A)–(D), thereby refuting the respondents’ argument that this phrase functions as an additional modifier on whom (c)(1) reaches.⁸

Yet, when it comes to deciphering the meaning of the temporal aspect of that key phrase, the Court slams the dictionary shut. Instead, in a part of the decision joined only by a plurality of the Court, Justice Alito concludes that the meaning of “when” in “when the alien is released” was intended by Congress to set a temporal starting point, not a statute of limitation, establishing the earliest possibility during which the Secretary could detain a noncitizen (any time after release from criminal custody, but no sooner).

What the plurality of the Court declines to look up, the dissent is pleased to crack open. Writing for the four dissenting judges, Justice Breyer looks to the Ninth Circuit’s understanding of “when” to include the definitions “[a]t the time that,”⁹ or “just after the moment that.”¹⁰ But the dissent discards these meanings of “when” and their connotations of immediacy, relying instead on Oxford English Dictionary’s recognition that the word “only ‘[s]ometimes impl[ies] suddenness.’”¹¹

Instead, the dissent largely avoids the debate on grammar, and focuses its discussion on the constitutional implications of the majority’s approach.¹² Invoking his dissent in last term’s Jennings v. Rodriguez, Justice Breyer reaffirms his concern that immigration detention without the possibility for periodic bond review violates the Fifth Amendment’s guarantee of due process.¹³Drawing on Jennings and on the Court’s opinion in Zadvydas v. Davis,¹⁴ Justice Breyer would read a six month limit (as interpreted in Zadvydas and found in comparable parts of the immigration statute) into the meaning of the government’s authority to detain these individuals “when they are released.” In this way, Breyer would bring the individuals set out at §§ (A)–(D) within the ambit of § 1226(c)(1) only if they are detained within six months of release from criminal custody. Breyer explains that to interpret the statute otherwise would create a constitutional question that must be avoided. “The issue may sound technical,” Justice Breyer observes, but “[t]hese are not mere hypotheticals.”¹⁵ While the majority focuses on grammar and avoiding a potential burden to the government, the dissent is concerned about the immediate harms to individuals facing unreviewable prolonged detention for possibly minor offenses.

Having recently returned from providing legal services to immigrant detainees with the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI), Justice Breyer’s concerns are particularly salient for me. In rural Georgia, SIFI staff work with individuals detained at the Stewart Detention Center.¹⁶ While SIFI aims to meet the needs of nearly two thousand individuals cycling in and out of the facility at any given time, the program’s pro bono legal representation is narrowly focused on securing bond or parole for eligible individuals. This narrow scope is still incredibly fraught, with routine denials of applications for bond and parole.¹⁷Even where immigrants appearing before the Stewart Immigration Court in Lumpkin, Georgia are afforded an opportunity for a bond hearing, only 34% of applications for release were granted between 2007 and 2018.¹⁸ Nationwide, the number is higher, but still less than 50%.¹⁹

As Justice Breyer observes, his outcome would not provide guaranteed release on bail, it would simply afford a noncitizen the opportunity to demonstrate why he should be released. The immigration court is then free to approve or (more likely) deny the application. The Preap majority declines to provide this opportunity, interpreting the statute to foreclose the possibility for these individuals to even try for release. The Court’s majority takes care to avoid deciding the constitutional issues that the dissent so gamely tackles head on. The result, long term detention of several categories of individuals without the opportunity for judicial review, should be justified with some stronger stuff than the mere diagramming of sentences.

Ana Corina “Cori” Alonso-Yoder is the Practitioner-in-Residence and Clinical Professor of Law with the Immigrant Justice Clinic at the American University Washington College of Law. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Atlantic, Washington Monthly, and The National Law Journal & Legal Times among others.

No. 16-1363 (U.S. Mar. 19, 2019).

8 U.S.C. § 1226 (2012).

Id. § (c)(2).

Id. §§ (a)(2)(A)–(B).

Id. § (c)(1) (emphasis added).

Preap, slip op., at 2 (syllabus of the Court).

Id. at 14 (majority opinion). Here the Court quotes A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts140 (2012) (which in turn cites Costello v. INS, 346 U.S. 120, 122–26 (1964)).

Preap, slip op. at 14 ((“‘the’ is ‘a function word . . . indicat[ing] that a following noun or noun equivalent is definite or has been previously specified by context’” (quoting Merriam-Webster’s Collegiate Dictionary 1294 (11th ed. 2005))).

Id. at 15 (Breyer, J., dissenting) (citing American Heritage Dictionary, at 1971).

Id. (citing Webster’s Third New International Dictionary, at 2602).

Id. (citing Oxford English Dictionary 209 (2d. ed. 1989)).

Perhaps as an expression of his view on the level of grammatical expertise required to decide this case, Breyer refers to the individuals who fall under § 1226’s mandatory detention scheme as “‘ABCD’ aliens.” Id. at 3.

Id. at 12 (citing U.S. Const. amend. V; Jennings v. Rodriguez, 583 U.S. ___ (2018) (dissenting opinion)).

533 U.S. 678 (2001).

Preap, slip op. at 4 (Breyer, J., dissenting).

See Southeast Immigrant Freedom Initiative (SIFI),Southern Poverty Law Center, https://www.splcenter.org/our-issues/immigrant-justice/southeast-immigrant-freedom-initiative-en.

See Syracuse University, Report on Immigration Bond Hearings and Related Decisions for Lumpkin Immigration Court, TRAC Immigration Project, https://trac.syr.edu/phptools/immigration/bond/.

Id.

Id. (searching bond data from all immigration courts between 2005 and 2018 which reflects that of 73,785 only 35,449 or roughly 48%, were granted).

Recommended Citation
Cori Alonso-Yoder, Response, Defining “the”: In Nielsen v. Preap the Court relies on language arts to justify detention of immigrants, Geo. Wash. L. Rev. On the Docket (Apr. 1, 2019), https://www.gwlr.org/defining-the-in-nielsen-v-preap-the-court-relies-on-language-arts-to-justify-detention-of-immigrants/.

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

Thanks, Cori, for this very clear and understandable analysis of this important case involving so-called “civil” immigration detention.

PWS

04-03-19

JUSTICE BREYER IS RIGHTFULLY CONCERNED ABOUT THE “DREDSCOTTIFICATION’” OF IMMIGRANTS AS SHOWN IN THE LEGALLY & MORALLY BANKRUPT VIEWS OF THE MAJORITY IN JENNINGS V. RODRIGUEZ!

https://slate.com/news-and-politics/2018/03/justice-alito-just-signaled-the-supreme-courts-conservatives-might-not-consider-immigrants-to-be-people.html

Mark Joseph Stern reports for Slate:

“Tuesday’s Supreme Court decision in Jennings v. Rodriguez was widely viewed as an anticlimax. The case involves a group of immigrants being held in custody without any hope of bail. They argue that their indefinite detention violates due process, but the majority declined to resolve the constitutional question, sending the case back down to the lower court. In a sense, the plaintiffs are back where they started.

Justice Stephen Breyer, however, saw something far more chilling in the majority’s opinion. Taking the rare and dramatic step of reading his dissent from the bench, Breyer cautioned that the court’s conservative majority may be willing to strip immigrants of personhood in a manner that harkens back to Dred Scott. The justice used his impassioned dissent to sound an alarm. We ignore him at our own peril.

Jennings involves three groups of noncitizen plaintiffs: asylum-seekers, immigrants who have committed crimes but finished serving their sentences, and immigrants who believe they’re entitled to enter the country for reasons unrelated to persecution. A high percentage of these types of immigrants ultimately win the right to enter the U.S. But federal law authorizes the government to detain them while it adjudicates their claims in case it secures the authority to deport them instead.

The detention of these immigrants—often in brutal facilities that impose inhuman punishments—has, in practice, dragged on for months, even years. There is no clear recourse for detained immigrants who remain locked up without a hearing. In 2001’s Zadvydas v. Davis, the court found that a similar scheme applied to “deportable aliens” would almost certainly violate the Fifth Amendment’s Due Process Clause. To avoid this constitutional problem, the court construed the law as limiting detention to six months.

But in Jennings, the court’s five-member conservative majority interpreted another federal law to permit indefinite detention of thousands of aliens, with no apparent concern for the constitutional problems that reading creates. Justice Samuel Alito, writing for the majority, revealed from the outset of his opinion that he dislikes Zadvydas, dismissing it as a “notably generous” holding that avoided the constitutional issue in order to secure due process for immigrants. Unlike the Zadvydas court, Alito has no interest in protecting the constitutional rights of noncitizens. Instead, he read the current statute as stingily as possible, concluding that it did, indeed, allow the government to detain all three groups of immigrants indefinitely.

Oddly, Alito then chose not to address whether this interpretation of the statute rendered it unconstitutional. Instead, he sent the case back down to the lower courts to re-examine the due process question. But in the process, the justice telegraphed where he stands on the issue by attempting to sabotage the plaintiffs on their way out the door. In the lower courts, this case proceeded as a class action, allowing the plaintiffs to fight for the rights of every other similarly situated immigrant. The government didn’t ask the Supreme Court to review whether it was proper for it to litigate the plaintiffs’ claims as a class. But Alito did it anyway, strongly suggesting that the lower court should dissolve the class and force every plaintiff to litigate his case by himself.

Alito’s antics infuriated Breyer, who dissented along with Justices Ruth Bader Ginsburg and Sonia Sotomayor. (Justice Elena Kagan recused, presumably because she worked on the case as solicitor general.) Using Zadvydas as a jumping-off point, he interpreted the statute to require a bail hearing for immigrants after six months’ confinement—provided they pose no risk of flight or danger to the community. “The Due Process Clause foresees eligibility for bail as part of ‘due process,’ ” Breyer explained. By its own terms, that clause applies to every “person” in the country. Thus, the Constitution only permits the government to detain these immigrants without bail if they are not considered “persons” within the United States.

That is essentially what the government argued, asserting that immigrants detained at the border have no rights. This theory justifiably fills Breyer with righteous disgust. “We cannot here engage in this legal fiction,” he wrote. “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.” Breyer continued:

Whatever the fiction, would the Constitution leave the government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.

Unfortunately, Breyer is not quite right that “no one” could claim, at least since “the time of slavery,” that noncitizens held in the U.S. “are totally without constitutional protection.” Just last October, Judge Karen L. Henderson of the U.S. Court of Appeals for the District of Columbia Circuit argued exactly that. In a stunning dissent, Henderson wrote that a pregnant, undocumented minor held in custody was “not entitled to the due process protections of the Fifth Amendment” because “[she] has never entered the United States as a matter of law … ” (The Due Process Clause protects women’s rights to abortion access.) In fact, the minor had entered the country and lived here for several months. But because she entered illegally, Henderson asserted that she had no constitutional rights. That’s precisely the “legal fiction” that Breyer rejected. It’s shockingly similar to the theory used to justify slavery and Dred Scott.

Do the Supreme Court’s conservatives agree with Henderson that undocumented immigrants detained in the U.S. have no constitutional protections? Breyer seems to fear that they do. In a striking peroration, Breyer reminded his colleagues that “at heart,” the issues before them “are simple”:

We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation. And we need just keep in mind the fact that … liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right.

We should all be concerned that Breyer found it necessary to explain these first principles to the court. So many rights flow from the Due Process Clause’s liberty component: not just the right to be free from arbitrary detention and degrading treatment, but also the right to bodily integrity and to equal dignity. Should the court rule that undocumented immigrants lack these basic liberties, what’s to stop the government from torturing them, executing them, or keeping them imprisoned forever?

If that sounds dramatic, consider Breyer’s somber warning about possible starvation, beatings, and lashings. The justice plainly recognizes that, with Jennings, the court may have already taken a step down this dark and dangerous path.”

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

As an appellate judge, I remember being infuriated by the callous attitude of some of my “Ivory Tower” colleagues and some trial judges who tended to minimize and sometimes trivialize human pain and suffering to arrive at nonsensical legalistic definitions of what constituted “persecution” or “torture.”

They simply didn’t want to recognize truth, because it would have resulted in more people being granted relief. In frustration, I occasionally privately suggested to staff that perhaps we needed an “interactive session” at the Annual Immigration Judges Conference (back in the days when we used to have such things) where those jurists who were immune to others’ pain and suffering would be locked in a room and subjected to some of the same treatment themselves. I imagine they would have been less stoic if it were happening to them rather than to someone else.

I doubt that any of the five Justices who joined the tone-deaf majority in Jennings would last more than a few days, not to mention years, in the kind of intentionally cruel, substandard, and deplorable conditions in which individuals, the majority of whom have valid claims to remain here under U.S. and international law, are detained in the “New American Gulag.” So, why is there no obvious Constitutional Due Process problem with subjecting individuals to so-called “civil” immigration detention, without recourse, under conditions that no human being, judge or not, should be forced to endure?

No, “Tone-Deaf Five,” folks fighting for their lives in immigration detention, many of whom lack basic legal representation that others take for granted, don’t have time to bring so-called “Bivens actions” (which the Court has pretty much judicially eliminated anyway) for “so-called “Constitutional torts!” Come on man, get serious!

Privileged jurists like Alito and Thomas speak in undecipherable legal trivialities and “pretzel themselves up” to help out corporate entities and other members of the privileged classes, yet have no time for clear violations of the Constitutional rights of the most vulnerable among us.

A much wiser, more humble, and less arrogant “judge” than Justice Alito and friends once said “Most certainly I tell you, inasmuch as you did it to one of the least of these my brothers, you did it to me.” When will the arrogant ever learn, when will they ever learn? Maybe not until it happens to them! Harm to the most vulnerable among us is harm to all of us! We should all be concerned that Justice Alito and his fellow judicial “corporate elitists” have “dissed” the Due Process Clause of our Constitution which protects everyone in America, not just corporations, gun owners, and over-privileged, under-humanized jurists!

Based upon recent statistics, approximately one person per month will die in the “DHS New American Gulag” while this case is “on remand” to the lower courts. How would Alito, Roberts, Thomas, Kennedy, and Gorsuch feel if it were their loved ones who perished, rather than some faceless (to them) “alien” (who also happens to be a human being)? Dehumanizing the least among us, like the Dred Scott decision did, de-humanizes all of us! For that, there is no defense at the bar of history and humanity.

PWS

03-01-18

SPLINTERED SUPREMES PROVISIONALLY OK “NEW AMERICAN GULAG” — Trump/Sessions Successfully Fight To Preserve Obama Legacy Of Never-Ending “Civil” Immigration Detention — Case Remanded To Lower Court, But Alito & Fellow GOP Justices Show Scant Concern For Human (Non-Economic) Rights & Freedom Under Constitution!

Jennings v. Rodriguez, O2-27-18

MAJORITY: Chief Justice Roberts, Justices Kennedy, Thomas, Alito, Gorsuch

CONCURRING OPINION: Justice Thomas, joined by Justice Gorsuch

DISSENTING OPINION: Justice Breyer, joined by Justices Ginsburg, Sotomayor

NOT PARTICIPATING: Justice Kagan

HERE’S A COPY OF THE COURT’S FULL DECISION:

15-1204_f29g

ANALYSIS BY ERIC LEVITZ @ NEW YORK MAGAZINE:

“For much of his presidency, Donald Trump has appeared more committed to nullifying his predecessor’s legacy than to any affirmative political principle. The president campaigned on a promise to repeal Obamacare and expand access to affordable health insurance — but when these goals came into conflict, he opted for the former. Trump argued vociferously that rogue regimes must be blocked from acquiring nuclear weapons — then “decertified” an Obama-era nuclear agreement that did just that. He claimed to believe in regulatory policies that protect “clean air and clean water,” then rolled back Obama-era rules aimed at that objective. Trump praised Janet Yellen’s economic management — but still took the precedent-defying step of refusing to grant the Obama-appointed Federal Reserve chair a second term.

Nevertheless, for all his policy nihilism, the president can still occasionally put substance over spite, and admit that on this or that specific issue, Barack Obama actually had a point. Thus, on Tuesday the Trump administration celebrated the preservation of one piece of Obama’s legacy.

In 2014, a federal district court ruled that immigrants detained while awaiting deportation proceedings were entitled to periodic bond hearings. The lead plaintiff in the case was a legal permanent resident of the United States, Alejandro Rodriguez, who was arrested as a teenager for joyriding and misdemeanor drug possession – and then jailed for three years, without ever receiving a bond hearing, as his lawyers (successfully) contested his deportation. The federal judge ruled that Rodriguez had a legal right to request to await trial outside of a detention facility. The Obama administration disagreed, arguing that the federal government has the authority to decide whether any individual immigrant should be afforded that right – or whether he or she is simply too dangerous for such due process – even if the person in question is a legal permanent resident or asylum-seeker.

Upon his election, Trump set aside his differences with Obama, and continued his predecessor’s appeal. Even when the Ninth Circuit upheld the lower court’s ruling, Jeff Sessions & Co. persisted in their defense of the Obama Justice Department’s position.

And on Tuesday, the Supreme Court’s conservative majority sided with the government in a narrow ruling: The justices did not rule that detained immigrants have no right to bond hearings under the Constitution; rather, they merely ruled that immigrants had no such rights under federal immigration law. As the New York Times explains:

The Ninth Circuit had ruled that bond hearings are required after six months to determine whether detainees who do not pose flight risks or a danger to public safety may be released while their cases proceed. The court based its ruling on an interpretation of the federal immigration laws, not the Constitution, though it said its reading was required to avoid constitutional difficulties.

Justice Samuel A. Alito Jr., writing for the majority on Tuesday, said that this interpretive approach, called “constitutional avoidance,” was unavailable here, as the words of the immigration laws were plain. “The meaning of the relevant statutory provisions is clear — and clearly contrary to the decision of the court of appeals,” Justice Alito wrote.
This ruling will send the case back to the Ninth Circuit, which will have the opportunity to assess whether the Constitution requires bond hearings for detained immigrants.

Three of the court’s liberals opposed the decision, while Elena Kagan recused herself (due to relevant work she had performed as Obama’s solicitor general). In an impassioned dissent, Justice Stephen Breyer insisted that the court should have reached a determination on the underlying Constitutional question – and ruled that all human beings in the United States are entitled to our founding document’s basic protections.

“[W]ould the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?” the Justice asked. “If not, then, whatever the [legal] fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”

“We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty,’” Breyer wrote.

But thanks to the bipartisan efforts of the patriots in our Justice Department, the Trump administration will remain free, for the moment, to indefinitely imprison any legal immigrants and asylum-seekers it wishes to deport.

And Trump wishes to deport quite a few — although he’ll need to get much more aggressive on that front, if he wishes to preserve the pace of deportations set by his predecessor.

But, as Tuesday’s ruling demonstrated, with enough will and bipartisan cooperation, there’s little the American government cannot do.”

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

HERE’S WHAT JUSTICE ALITO, JUSTICE THOMAS & THEIR BUDDIES REALLY ARE SAYING BEYOND THE LEGAL GOBBLEDYGOOK:

The plaintiffs are neither corporations nor guns. They are mere human beings. Therefore, they are entitled to no Constitutional protections that we care to enforce.

FROM JUSTICE BREYER’S DISSENT:

The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required. Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail. Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings. I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Cir cuit imposed.

The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbi trary deprivation. And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right. I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.
Because the majority does not do so, with respect, I dissent.

ONE POINT THAT ALL EIGHT JUSTICES AGREED ON:

The 9th Circuit was without authority to rewrite the statute to require bond hearings at 6 month intervals with the DHS bearing the burden of proof on continuing detention.

PWS

02-27-18

U.S. IMMIGRATION JUDGES CAN BREATHE EASIER: Judge Richard “Dickie The P” Posner Retires — 7th Cir. Jurist Was Caustic, Unrelenting Critic Of U.S. Immigration Courts!

http://www.chicagotribune.com/news/local/breaking/ct-judge-richard-posner-retires-met-20170901-story.html

The Chicago Tribune reports:

“Judge Richard A. Posner, one of the nation’s leading appellate judges, whose acerbic wit attracted an almost cultlike following within legal circles, is retiring after more than three decades with the 7th U.S. Circuit Court of Appeals in Chicago.

Posner, 78, is stepping down effective Saturday, according to a news release Friday afternoon from the 7th Circuit. He was appointed to the court by President Ronald Reagan in 1981 and served as its chief judge from 1993 to 2000.

Posner said in a statement he has written more than 3,300 opinions in his time on the bench and is “proud to have promoted a pragmatic approach to judging.” He said he spent his career applying his view that “judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case.”

Posner’s biting and often brilliant written opinions as well as his unrelenting questioning from the bench have made him an icon of the court for years.

Known as a conservative at the time of his appointment, Posner’s views skewed more libertarian through the years, and he often came down in favor of more liberal issues such as gay marriage and abortion rights.

Lawyers who regularly appeared before the 7th Circuit knew that when Posner was on a panel they had to be ready for a line of questioning that could come out of left field. The salty judge was known to abruptly cut off lawyers who he thought were off-point, often with a dismissive “No, no, no!” delivered in his trademark nasal tone.”

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

Read the full article at the link.

Here’s a classic Posner comment on the U.S. Immigration Courts from a 2016 case, Chavarria-Reyes v. Lynch:

“POSNER, Circuit Judge, dissenting. This case involves a typical botch by an immigration judge. No surprise: the Immigration Court, though lodged in the Justice Department, is the least competent federal agency, though in fairness it may well owe its dismal status to its severe underfunding by Congress, which has resulted in a shortage of immigration judges that has subjected them to crushing workloads.”

See my prior blog on Chavarria-Reyes:

http://immigrationcourtside.com/2017/01/02/the-u-s-immigration-courts-vision-is-all-about-best-practices-guaranteeing-fairness-and-due-process-7th-circuits-judge-posner-thinks-its-a-farce-blames-congressional-underfunding/

Judge Posner was always provocative, often entertaining, and eminently quotable. While I found some of his commentary on the Immigration Courts and the BIA, and particularly some of his harsh words about individual Immigration Judges, to be “over the top,” his blunt criticism of the failure to provide due process to migrants and his recognition that the DOJ and Congress shared the majority of the responsibility for screwing up the system was spot on.

He was always a “player,” and he will be missed even by those who disagreed with him. I look forward to a “Posner commentary” on the state of due process in the Immigration Courts in the Sessions regime.

PWS

09-03-17

RELAX, Cabinet Members! — Supremes Say No Monetary Damages For Unconstitutional Acts! — Ziglar v. Abbasi

https://www.supremecourt.gov/opinions/16pdf/15-1358_6khn.pdf

The full opinion is at the above link. Here’s the Court’s “Detailed Syllabus,” which, of course, is NOT part of the opinion:

Syllabus

ZIGLAR v. ABBASI ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 15–1358. Argued January 18, 2017—Decided June 19, 2017*

In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then filed this putative class action against petitioners, two groups of federal officials. The first group consisted of former Attorney General John Ashcroft, for- mer Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Officials). The second group consisted of the facili- ty’s warden and assistant warden Dennis Hasty and James Sherman (Wardens). Respondents sought damages for constitutional viola- tions under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that peti- tioners detained them in harsh pretrial conditions for a punitive pur- pose, in violation of the Fifth Amendment; that petitioners did so be- cause of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U. S. C. §1985(3), which forbids certain

——————

*Together with No. 15–1359, Ashcroft, Former Attorney General, et al. v. Abbasi et al., and No. 15–1363, Hasty et al. v. Abbasi et al., also on certiorari to the same court.

ZIGLAR v. ABBASI Syllabus

conspiracies to violate equal protection rights. The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Second Circuit af- firmed in most respects as to the Wardens but reversed as to the Ex- ecutive Officials, reinstating respondents’ claims.

Held: The judgment is reversed in part and vacated and remanded in part.

789 F. 3d 218, reversed in part and vacated and remanded in part. JUSTICE KENNEDY delivered the opinion of the Court, except as to

Part IV–B, concluding:
1. The limited reach of the Bivens action informs the decision

whether an implied damages remedy should be recognized here. Pp. 6–14.

(a) In 42 U. S. C. §1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the Federal Government. In 1971, and against this background, this Court recognized in Bivens an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. In the following decade, the Court allowed Bivens-type remedies twice more, in a Fifth Amend- ment gender-discrimination case, Davis v. Passman, 442 U. S. 228, and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v. Green, 446 U. S. 14. These are the only cases in which the Court has approved of an implied damages remedy un- der the Constitution itself. Pp. 6–7.

(b) Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to “pro- vide such remedies as are necessary to make effective” a statute’s purpose. J. I. Case Co. v. Borak, 377 U. S. 426, 433. The Court has since adopted a far more cautious course, clarifying that, when decid- ing whether to recognize an implied cause of action, the “determina- tive” question is one of statutory intent. Alexander v. Sandoval, 532 U. S. 275, 286. If a statute does not evince Congress’ intent “to create the private right of action asserted,” Touche Ross & Co. v. Redington, 442 U. S. 560, 568, no such action will be created through judicial mandate. Similar caution must be exercised with respect to damages actions implied to enforce the Constitution itself. Bivens is well- settled law in its own context, but expanding the Bivens remedy is now considered a “disfavored” judicial activity. Ashcroft v. Iqbal, 556 U. S. 662, 675.

When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the

Cite as: 582 U. S. ____ (2017) 3

Syllabus

analysis. The question is whether Congress or the courts should de- cide to authorize a damages suit. Bush v. Lucas, 462 U. S. 367, 380. Most often it will be Congress, for Bivens will not be extended to a new context if there are “ ‘special factors counselling hesitation in the absence of affirmative action by Congress.’ ” Carlson, supra, at 18. If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, courts must refrain from creating that kind of remedy. An alternative remedial structure may also limit the Judiciary’s power to infer a new Bivens cause of action. Pp. 8–14.

2. Considering the relevant special factors here, a Bivens-type rem- edy should not be extended to the claims challenging the confinement conditions imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. These “detention policy claims” include the allegations that petitioners violated respondents’ due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegations that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The detention policy claims do not include the guard-abuse claim against Warden Hasty. Pp. 14–23.

(a) The proper test for determining whether a claim arises in a new Bivens context is as follows. If the case is different in a mean- ingful way from previous Bivens cases decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intru- sion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Respondents’ detention policy claims bear little resemblance to the three Bivens claims the Court has approved in previous cases. The Second Circuit thus should have held that this was a new Bivens context and then performed a special factors analysis before allowing this damages suit to proceed. Pp. 15–17.

(b)The special factors here indicate that Congress, not the courts, should decide whether a damages action should be allowed.

With regard to the Executive Officials, a Bivens action is not “a proper vehicle for altering an entity’s policy,” Correctional Services Corp. v. Malesko, 534 U. S. 61, 74, and is not designed to hold officers responsible for acts of their subordinates, see Iqbal, supra, at 676. Even an action confined to the Executive Officers’ own discrete con- duct would call into question the formulation and implementation of a high-level executive policy, and the burdens of that litigation could prevent officials from properly discharging their duties, see Cheney v.

ZIGLAR v. ABBASI Syllabus

United States Dist. Court for D. C., 542 U. S. 367, 382. The litigation process might also implicate the discussion and deliberations that led to the formation of the particular policy, requiring courts to interfere with sensitive Executive Branch functions. See Clinton v. Jones, 520 U. S. 681, 701.

Other special factors counsel against extending Bivens to cover the detention policy claims against any of the petitioners. Because those claims challenge major elements of the Government’s response to the September 11 attacks, they necessarily require an inquiry into na- tional-security issues. National-security policy, however, is the pre- rogative of Congress and the President, and courts are “reluctant to intrude upon” that authority absent congressional authorization. Department of Navy v. Egan, 484 U. S. 518, 530. Thus, Congress’ failure to provide a damages remedy might be more than mere over- sight, and its silence might be more than “inadvertent.” Schweiker v. Chilicky, 487 U. S. 412, 423. That silence is also relevant and telling here, where Congress has had nearly 16 years to extend “the kind of remedies [sought by] respondents,” id., at 426, but has not done so. Respondents also may have had available “ ‘other alternative forms of judicial relief,’ ” Minneci v. Pollard, 565 U. S. 118, 124, including in- junctions and habeas petitions.

The proper balance in situations like this, between deterring con- stitutional violations and freeing high officials to make the lawful de- cisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. The Second Circuit thus erred in allowing respondents’ detention policy claims to proceed under Bivens. Pp. 17–23.

3. The Second Circuit also erred in allowing the prisoner abuse claim against Warden Hasty to go forward without conducting the required special factors analysis. Respondents’ prisoner abuse alle- gations against Warden Hasty state a plausible ground to find a con- stitutional violation should a Bivens remedy be implied. But the first question is whether the claim arises in a new Bivens context. This claim has significant parallels to Carlson, which extended Bivens to cover a failure to provide medical care to a prisoner, but this claim nevertheless seeks to extend Carlson to a new context. The constitu- tional right is different here: Carlson was predicated on the Eighth Amendment while this claim was predicated on the Fifth. The judi- cial guidance available to this warden with respect to his supervisory duties was less developed. There might have been alternative reme- dies available. And Congress did not provide a standalone damages remedy against federal jailers when it enacted the Prison Litigation Reform Act some 15 years after Carlson. Given this Court’s ex- pressed caution about extending the Bivens remedy, this context

Cite as: 582 U. S. ____ (2017) 5

Syllabus

must be regarded as a new one. Pp. 23–26.
4. Petitioners are entitled to qualified immunity with respect to re-

spondents’ claims under 42 U. S. C. §1985(3). Pp. 26–32.
(a) Assuming that respondents’ allegations are true and well pleaded, the question is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful con- spiracy. The qualified-immunity inquiry turns on the “objective legal reasonableness” of the official’s acts, Harlow v. Fitzgerald, 457 U. S. 800, 819, “assessed in light of the legal rules that were ‘clearly estab- lished’ at the time [the action] was taken,” Anderson v. Creighton, 483 U. S. 635, 639. If it would have been clear to a reasonable officer that the alleged conduct “was unlawful in the situation he confront- ed,” Saucier v. Katz, 533 U. S. 194, 202, the defendant officer is not entitled to qualified immunity. But if a reasonable officer might not have known that the conduct was unlawful, then the officer is enti-

tled to qualified immunity. Pp. 27–29.
(b) Here, reasonable officials in petitioners’ positions would not

have known with sufficient certainty that §1985(3) prohibited their joint consultations and the resulting policies. There are two reasons. First, the conspiracy is alleged to have been among officers in the same Department of the Federal Government. And there is no clear- ly established law on the issue whether agents of the same executive department are distinct enough to “conspire” with one another within the meaning of 42 U. S. C. §1985(3). Second, open discussion among federal officers should be encouraged to help those officials reach con- sensus on department policies, so there is a reasonable argument that §1985(3) liability should not extend to cases like this one. As these considerations indicate, the question whether federal officials can be said to “conspire” in these kinds of situations is sufficiently open that the officials in this suit would not have known that §1985(3) applied to their discussions and actions. It follows that rea- sonable officers in petitioners’ positions would not have known with any certainty that the alleged agreements were forbidden by that statute. Pp. 29–32.

KENNEDY, J., delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined, and an opinion with respect to Part IV–B, in which ROB- ERTS, C. J., and ALITO, J., joined. THOMAS, J., filed an opinion concur- ring in part and concurring in the judgment. BREYER, J., filed a dis- senting opinion, in which GINSBURG, J., joined. SOTOMAYOR, KAGAN, and GORSUCH, JJ., took no part in the consideration or decision of the cases.

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

It was an odd opinion in that only six Justices participated, so the majority was 4-2. The majority opinion was Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas and Alito. But, the Chief Justice and Justices Thomas and Alito also wrote or joined in separate concurring opinions. Justice Breyer wrote a dissenting opinion in which Justice Ginsburg joined.

Justices Sotomayer, Kagan, and Gorsuch sat this one out. Justice Sotomayor previously was a Judge on the Second Circuit at the time this case was before that court. Justice Kagan worked on the case as Solicitor General. And, Justice Gorsuch arrived too late to participate in the argument and deliberations.

However, I doubt that there would be a difference in result with all nine Justices voting. Justice Gorsuch almost certainly would side with the majority opinion’s “strict construction” of liability. Even assuming that Justices Sotomayor and Kagan would side with the dissenters, there would still be a 5-4 majority for the approach set forth in Justice Kennedy’s opinion.

Reading between the lines here, I think that the whole Bivens concept is “on the rocks” before this Court. The current, more conservative, Court clearly wishes Bivens were never decided and wants to limit it essentially to its facts. With a GOP President, any future appointments are likely to turn the tide even more solidly for overruling or strictly limiting Bivens.

I must admit to having mixed feelings. As a Government Senior Executive I was subject to several (totally unfounded) Bivens suits. I was greatly relieved and totally delighted when the doctrines of absolute and implied immunity got me dismissed in my private capacity. I also took out a standard Government approved “Bivens liability insurance policy” just in case.

On the other hand, I’d have to say that the specter of being involved in Bivens litigation was something that I and almost all of the other senior government officials whom I advised and worked with, up to and including Cabinet officers, had Bivens in the back of our “collective minds” in determining actions and policies. So, there was at least some “deterrent value” in the Bivens case. Moreover, it was an effective tool for pointing out the necessity for line enforcement officers, whom I often trained or advised, to keep their actions within clearly established constitutional boundries.

The Court suggests that it would be best for Congress to address this subject. But, Bivens has been around for many years and Congress has never addressed it. So, I wouldn’t hold my breath.

Interestingly, among those high-ranking officials who were relieved of any liability in this case were former Attorney General John Ashcroft and then FBI Director Robert Mueller.

PWS

06-19-17

Justice Gorsuch Thinks It’s Great That The “government can lose in its own courts.” — I Agree! — But, The Guy Who Appointed Him Might Not!

https://www.washingtonpost.com/politics/courts_law/gorsuch-stresses-rule-of-law-system-where-government-can-lose-in-its-own-courts/2017/06/03/6d85cdc4-487b-11e7-a196-a1bb629f64cb_story.html?utm_term=.16cabc457759

Robert Barnes reports for the Washington Post:

“CAMBRIDGE, Mass. — With legal challenges to the Trump administration’s initiatives multiplying in federal courts, new Supreme Court Justice Neil M. Gorsuch extolled the virtues of judicial independence and praised a legal system in which “government can lose in its own courts” Friday night.

It was the first public appearance off the bench for President Trump’s choice for the high court, who joined Justice Stephen G. Breyer at the Harvard Marshall Forum. Both are former Marshall scholars who did graduate work in the United Kingdom, and spoke at an event commemorating the 70th anniversary of George C. Marshall’s plan to rebuild Europe after World War II.

The event was about as noncontroversial as it could be, even if one of the first questions to Gorsuch concerned a naked sex doll the future justice observed when he had tea with an Oxford dean.

Trump last week made good on his pledge to political opponents to “see you in the Supreme Court,” asking the justices to revive his plan to temporarily ban entry to citizens of six mostly Muslim countries. A string of judges and appeals courts have concluded the president’s executive orders have more to do with his campaign pledge to ban Muslims from entering the country than an immediate threat to the country’s security.

Trump has bitterly denounced those rulings, as well as a decision to stop his proposal to cut federal funds from cities that protect illegal immigrants. During the campaign, he criticized a federal judge who ruled against him in a suit involving his for-profit universities because he said the judge’s Mexican ancestry made him prejudiced.

Jeffrey Rosen, a legal scholar and writer who is also president of the National Constitution Center, did not ask Gorsuch and Breyer about those controversies or any matter before the court.

But Gorsuch and Breyer talked in broad terms about independence and respect for the judicial branch’s decisions.

Gorsuch said he is grateful for the tradition that “judges can safely decide the law according to their conscience, without fear of reprisal.”

It is a remarkable thing, he said, “that government can lose, in its own courts, and accept the judgment of those courts without an army to back up the judgments. Just nine old people in polyester black robes that we have to buy at the uniform supply store…that is a heritage that is very special.”

As he did at his confirmation hearing, Gorsuch downplayed divisive decisions and stressed unanimity and acceptance of court’s decisions. Only about 5 percent of cases are appealed, he said, and “our court” accepts only 80 or so a year, a relative handful.

“Nine justices appointed by six presidents over a 30-year period,” Gorsuch said. “And we’re unanimous about 40 percent of the time.”

Of course, it is the closely divided cases at the appeals courts and the Supreme Court that are its most important. But Gorsuch and Breyer stressed the independence judges have to make controversial decisions.”

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

Read the complete story at the link.

Even today, in the wake of tragedy in London, Trump couldn’t resist an inappropriate tweet taking a cheap shot at the U.S. Courts. Nor could he stop himself from trying to promote panic and throwing darts at the Mayor of London. He’s certainly the embodiment of the “Ugly American.”

One of the major differences between the U.S. and the many countries I dealt with on a daily basis over the past 21 years in various courts is the true independence of the Article III judiciary in the U.S.

By contrast, Trump’s demeanor, behavior, temperament, and the folks he surrounds himself with are very reminiscent of third-world dictators.

PWS

06-04-17

This WashPost headline and Post Supreme Court reporter Robert Barnes’s summary say it all!

Supreme Court rules against immigrants claiming safety fears after deportation and for pipeline builders

Here’s the “full text” of the decision:

🇺🇸Due Process Forever!

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Vote ‘Em out, vote ‘Em out! At every level of Government, the GOP and their ideological judges are committed to unrelenting corruption, inequality, destroying democracy, and forcing an extreme right-wing agenda on the majority of Americans!

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Vote like you life depends on it. Because, it does!

Due Process Forever! Complicit Courts Never!

PWS

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09-11-19 will be remembered as the day that justice, human rights, and human decency died in America!

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