FINALLY, TOGETHERNESS REIGNS SUPREME👩🏻‍⚖️❤️👨‍⚖️: Unanimous Court, Per Justice Ginsburg, Pulverizes 9th Circuit For Stretching To Hold Immigration Crime Unconstitutional, Remands — UNITED STATES v. SINENENG-SMITH

https://www.supremecourt.gov/opinions/19pdf/19-67_n6io.pdf

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. SINENENG-SMITH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 19–67. Argued February 25, 2020—Decided May 7, 2020

Respondent Evelyn Sineneng-Smith operated an immigration consulting firm in San Jose, California. She assisted clients working without au- thorization in the United States to file applications for a labor certifi- cation program that once provided a path for aliens to adjust to lawful permanent resident status. Sineneng-Smith knew that her clients could not meet the long-passed statutory application-filing deadline, but she nonetheless charged each client over $6,000, netting more than $3.3 million.

Sineneng-Smith was indicted for multiple violations of 8 U. S. C. §1324(a)(1)(A)(iv) and (B)(i). Those provisions make it a federal felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law,” §1324(a)(1)(A)(iv), and impose an enhanced penalty if the crime is “done for the purpose of commercial advantage or private financial gain,” §1324(a)(1)(B)(i). In the District Court, she urged that the pro- visions did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. The District Court rejected her arguments and she was convicted, as relevant here, on two counts under §1324(a)(1)(A)(iv) and (B)(i).

Sineneng-Smith essentially repeated the same arguments on appeal to the Ninth Circuit. Again she asserted a right under the First Amendment to file administrative applications on her clients’ behalf, and she argued that the statute could not constitutionally be applied to her conduct. Instead of adjudicating the case presented by the par- ties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the

2 UNITED STATES v. SINENENG-SMITH Syllabus

First Amendment. In accord with the amici’s arguments, the Ninth Circuit held that §1324(a)(1)(A)(iv) is unconstitutionally overbroad.

Held: The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.

The Nation’s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243.

That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including abstract advocacy and legal advice. It did so even though Sineneng-Smith’s counsel had presented a contrary theory of the case in her briefs and before the District Court. A court is not hidebound by counsel’s precise arguments, but the Ninth Circuit’s radical trans- formation of this case goes well beyond the pale. On remand, the case is to be reconsidered shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties. Pp. 3–9.

910 F. 3d 461, vacated and remanded.

GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion.

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👎Justice Thomas used his concurring opinion as an opportunity to attack the “overbreadth doctrine,” and to solicit future challenges to it, presumably from right-wing advocates and activist conservative judges who agree with him.

It’s interesting how moderate and liberal judges who believe in the Constitution, the rule of law, and standing up for individual rights in the face of government overreach are often forced to deny that they are “activists.” By contrast, right wing judges often make little or no attempt to disguise their activist, often anti-human-rights, “turn back the clock to the bad old days,” agenda and to use their opinions as a forum to critique and solicit challenges to rules of law they don’t like. Often such rules under attack from the judicial right tend to vindicate the rights and humanity of individuals, particularly minorities and other vulnerable individuals, over corporate, government, financial, and other elitist interests.

Additionally, as with Thomas, the the right-wing judicial activists customarily harken back wistfully to a past “golden” age of American Jurisprudence when the exclusively white, male, nearly 100% Christian Supremes were perfectly happy to look the other way and bend the rules to favor ruling elites over African Americans, women, children, the poor, non-Christians, and others who weren’t part of the “ruling elites.” Thomas laments the abandonment of the views and methods of the “18th & 19 century” American judiciary. Most ironically, under those rules and the “world outlook and values” they often embodied, it’s highly unlikely that Thomas himself would have been able to attend Yale, become a Justice, or otherwise be allowed and encouraged to reach his full potential.

Quite contrary to Thomas’s argument, we can’t and shouldn’t take “value judgement” out of judging. Indeed, Thomas’s plea to let the Legislature and the Executive run roughshod over constitutional rights if they choose to do so is, in and of itself, a clear “value judgment” as to what best serves society. Making “value judgments” is at the heart of all judging. That isn’t the problem. No, the real problem is the lack of consistent human (and humane) values, practical experience, and human empathy in too many of today’s Federal Judges, particularly those appointed by Trump and Moscow Mitch.

At least we clearly know what’s coming in the future from the “Trump Judiciary” and their cheerleaders like Thomas. Consequently, it’s critically important that “Democrats and liberals” act accordingly the next time they get control over Federal Judicial appointments.

Due Process Forever!

PWS

05-07-20

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

FINALLY: SPLIT 9TH CIR PANEL ENTERS NATIONWIDE INJUNCTION AGAINST “LET ‘EM DIE IN MEXICO” A/K/A “MIGRANT ‘PROTECTION’ PROTOCOLS” — Innovation Law Lab v. Wolf

9thMPPInjunction

Innovation Law Lab v. Wolf, 9th Cir., 02-28-20, published

PANEL: Ferdinand F. Fernandez, William A. Fletcher, and Richard A. Paez, Circuit Judges.

OPINION BY: Judge William A. Fletcher

DISSENTING OPINION: Judge Ferdinand F. Fernandez

KEY QUOTE FROM MAJORITY:

In addition to likelihood of success on the merits, a court must consider the likelihood that the requesting party will

INNOVATION LAW LAB V. WOLF 49

suffer irreparable harm, the balance of the equities, and the public interest in determining whether a preliminary injunction is justified. Winter, 555 U.S. at 20. “When the government is a party, these last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).

There is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined. Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum.

The balance of equities favors plaintiffs. On one side is the interest of the Government in continuing to follow the directives of the MPP. However, the strength of that interest is diminished by the likelihood, established above, that the MPP is inconsistent with 8 U.S.C. §§ 1225(b) and 1231(b). On the other side is the interest of the plaintiffs. The individual plaintiffs risk substantial harm, even death, so long as the directives of the MPP are followed, and the organizational plaintiffs are hindered in their ability to carry out their missions.

The public interest similarly favors the plaintiffs. We agree with East Bay Sanctuary Covenant:

On the one hand, the public has a “weighty” interest “in efficient administration of the immigration laws at the border.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). But the public also has an interest in ensuring that “statutes enacted by [their] representatives”

50 INNOVATION LAW LAB V. WOLF

are not imperiled by executive fiat. Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers).

932 F.3d at 779 (alteration in original).

VII. Scope of the Injunction

The district court issued a preliminary injunction setting aside the MPP—that is, enjoining the Government “from continuing to implement or expand the ‘Migrant Protection Protocols’ as announced in the January 25, 2018 DHS policy memorandum and as explicated in further agency memoranda.” Innovation Law Lab, 366 F. Supp. 3d at 1130. Accepting for purposes of argument that some injunction should issue, the Government objects to its scope.

We recognize that nationwide injunctions have become increasingly controversial, but we begin by noting that it is something of a misnomer to call the district court’s order in this case a “nationwide injunction.” The MPP operates only at our southern border and directs the actions of government officials only in the four States along that border. Two of those states (California and Arizona) are in the Ninth Circuit. One of those states (New Mexico) is in the Tenth Circuit. One of those states (Texas) is in the Fifth Circuit. In practical effect, the district court’s injunction, while setting aside the MPP in its entirety, does not operate nationwide.

For two mutually reinforcing reasons, we conclude that the district court did not abuse its discretion in setting aside the MPP.

INNOVATION LAW LAB V. WOLF 51

First, plaintiffs have challenged the MPP under the Administrative Procedure Act (“APA”). Section 706(2)(A) of the APA provides that a “reviewing court shall . . . hold unlawful and set aside agency action . . . not in accordance with law.” We held, above, that the MPP is “not in accordance with” 8 U.S.C. § 1225(b). Section 706(2)(A) directs that in a case where, as here, a reviewing court has found the agency action “unlawful,” the court “shall . . . set aside [the] agency action.” That is, in a case where § 706(2)(A) applies, there is a statutory directive—above and beyond the underlying statutory obligation asserted in the litigation—telling a reviewing court that its obligation is to “set aside” any unlawful agency action.

There is a presumption (often unstated) in APA cases that the offending agency action should be set aside in its entirety rather than only in limited geographical areas. “[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that rules are vacated—not that their application to the individual petitioners is proscribed.” Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F3d 476, 511 (9th Cir. 2018) (internal quotation marks omitted). “When a court determines that an agency’s action failed to follow Congress’s clear mandate the appropriate remedy is to vacate that action.” Cal. Wilderness Coalition v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011); see also United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”); Gen. Chem. Corp. v. United States, 817 F.2d 844, 848 (D.C. Cir. 1987) (“The APA requires us to vacate the agency’s decision if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”).

52 INNOVATION LAW LAB V. WOLF

Second, cases implicating immigration policy have a particularly strong claim for uniform relief. Federal law contemplates a “comprehensive and unified” immigration policy. Arizona v. United States, 567 U.S. 387, 401 (2012). “In immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.” E. Bay Sanctuary Covenant, 932 F.3d at 779. We wrote in Regents of the University of California, 908 F.3d at 511, “A final principle is also relevant: the need for uniformity in immigration policy. . . . Allowing uneven application of nationwide immigration policy flies in the face of these requirements.” We wrote to the same effect in Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018): “Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.” The Fifth Circuit, one of only two other federal circuits with states along our southern border, has held that nationwide injunctions are appropriate in immigration cases. In sustaining a nationwide injunction in an immigration case, the Fifth Circuit wrote, “[T]he Constitution requires ‘an uniform Rule of Naturalization’; Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly’; and the Supreme Court has described immigration policy as ‘a comprehensive and unified system.’” Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (emphasis in original; citations omitted). In Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), we relied on the Fifth Circuit’s decision in Texas to sustain the nationwide scope of a temporary restraining order in an immigration case. We wrote, “[W]e decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the

INNOVATION LAW LAB V. WOLF 53 constitutional and statutory requirement for uniform

immigration law and policy.” Id. at 1166–67. Conclusion

We conclude that the MPP is inconsistent with 8 U.S.C. § 1225(b), and that it is inconsistent in part with 8 U.S.C. § 1231(b). Because the MPP is invalid in its entirety due to its inconsistency with § 1225(b), it should be enjoined in its entirety. Because plaintiffs have successfully challenged the MPP under § 706(2)(A) of the APA, and because the MPP directly affects immigration into this country along our southern border, the issuance of a temporary injunction setting aside the MPP was not an abuse of discretion.

We lift the emergency stay imposed by the motions panel, and we firm the decision of the district court.

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

At last, a breath of justice in halting, at least temporarily, an outrageously illegal program that is also a grotesque violation of our national values and humanity. Unfortunately, it has already resulted in thousands of injustices and damaged many lives beyond repair. That’s something that a clueless shill for authoritarianism, wanton cruelty, and abrogation of the rule of law like dissenting Judge Fernandez might want to think about.

But, hold the “victory dance.” The regime will likely seek “rehearing en banc,” appealing to other enablers of human rights atrocities like Fernandez. And, if the regime fails there, they always can “short circuit” the legal system applicable to everyone else by having Solicitor General Francisco ask his GOP buddies on the Supremes, “The JR Five,” to give the regime a free pass. As Justice Sotomayor pointed out, that type of “tilt” has already become more or less “business as usual” as the regime carries out its nativist, White Nationalist immigration agenda. Indeed, Justices Gorsuch and Thomas have already announced their eagerness to carry the regime’s water for them by doing away with nationwide injunctions, even though they are the sole way for doing justice in immigration cases like this.

But, at least for today, we can all celebrate a battle won by the New Due Process Army in the ongoing war to restore our Constitution, the rule of law, and human dignity.

Due Process Forever!

PWS

02-29-20

SUPREMES’ RIGHT WING DELIVERS STARK MESSAGE: BROWN LIVES DON’T MATTER, AS IT SHRUGS OFF CBP AGENT’S UNJUSTIFIED KILLING OF MEXICAN TEEN – Other Four Justices Dissent From Grant of Impunity For Deadly Immigration Enforcement – Hernandez v. Mesa

Hernandez v. Mesa, No. 17-1678, 02-26-20

Hernandez v. Mesa17-1678_m6io

Syllabus [By Court Staff]

HERNANDEZ ET AL. v. MESA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 17–1678. Argued November 12, 2019—Decided February 25, 2020

Respondent, United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, in a tragic and disputed cross-border incident. Mesa was standing on U. S. soil when he fired the bullets that struck and killed Hernández, who was on Mexican soil, after having just run back across the border following entry onto U. S. territory. Agent Mesa contends that Hernández was part of an illegal border crossing attempt, while petitioners, Hernández’s parents, claim he was playing a game with his friends that involved running back and forth across the culvert sep- arating El Paso, Texas, from Ciudad Juarez, Mexico. The shooting drew international attention, and the Department of Justice investi- gated, concluded that Agent Mesa had not violated Customs and Bor- der Patrol policy or training, and declined to bring charges against him. The United States also denied Mexico’s request for Agent Mesa to be extradited to face criminal charges in Mexico.

Petitioners sued for damages in U. S. District Court under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The Dis- trict Court dismissed their claims, and the United States Court of Ap- peals for the Fifth Circuit affirmed. After this Court vacated that de- cision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S. ___, the Fifth Circuit again affirmed, refusing to rec- ognize a Bivens claim for a cross-border shooting.

Held: Bivens’ holding does not extend to claims based on a cross-border shooting. Pp. 4–20.

(a) In Bivens, the Court implied a Fourth Amendment claim for damages even though no federal statute authorized such a claim. The Court later extended Bivens’ reach to cover claims under the Fifth and

2

HERNANDEZ v. MESA Syllabus

Eighth Amendments. See Davis v. Passman, 442 U. S. 228; Carlson v. Green, 446 U. S. 14. But Bivens’ expansion has since become “a ‘disfa- vored’ judicial activity,” Abbasi, supra, at ___, and the Court has gen- erally expressed doubt about its authority to recognize causes of action not expressly created by Congress, see, e.g., Jesner v. Arab Bank, PLC, 584 U. S. ___, ___. When considering whether to extend Bivens, the Court uses a two-step inquiry that first asks whether the request in- volves a claim that arises in a “new context” or involves a “new cate- gory of defendants.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 68. If so, the Court then asks whether there are any “special factors [that] counse[l] hesitation” about granting the extension. Abbasi, supra, at ___. Pp. 4–8.

(b) Petitioners’ Bivens claims arise in a new context. Their claims are based on the same constitutional provisions as claims in cases in which damages remedies were previously recognized, but the con- text—a cross-border shooting—is significantly “different . . . from pre- vious Bivens cases.” Abbasi, supra, ___. It involves a “risk of disrup- tive intrusion by the Judiciary into the functioning of other branches.” Abbasi, supra, ___. Pp. 8–9.

(c) Multiple, related factors counsel hesitation before extending Bivens remedies into this new context. Pp. 9–19.

(1) The expansion of a Bivens remedy that impinges on foreign re- lations—an arena “so exclusively entrusted to the political branches . . . as to be largely immune from judicial inquiry,” Haig v. Agee, 453 U. S. 280, 292—risks interfering with the Executive Branch’s “lead role in foreign policy,” Medellín v. Texas, 552 U. S. 491, 524. A cross- border shooting affects the interests of two countries and, as happened here, may lead to disagreement. It is not for this Court to arbitrate between the United States and Mexico, which both have legitimate and important interests at stake and have sought to reconcile those inter- ests through diplomacy. Pp. 9–12.

(2) Another factor is the risk of undermining border security. The U. S. Customs and Border Protection Agency is responsible for pre- venting the illegal entry of dangerous persons and goods into the United States, and the conduct of their agents positioned at the border has a clear and strong connection to national security. This Court has not extended Bivens where doing so would interfere with the system of military discipline created by statute and regulation, see, e.g., Chap- pell v. Wallace, 462 U. S. 296, and a similar consideration is applicable to the framework established by the political branches for addressing cases in which it is alleged that lethal force at the border was unlaw- fully employed by a border agent. Pp. 12–14.

(3) Moreover, Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside

Cite as: 589 U. S. ____ (2020) 3 Syllabus

S. borders. For example, recovery under 42 U. S. C. §1983 is avail- able only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” The Federal Tort Claims Act bars “[a]ny claim arising in a foreign country.” 28 U. S. C. §2680(k). And the Tor- ture Victim Protection Act of 1991, note following 28 U. S. C. §1350, cannot be used by an alien to sue a United States officer. When Con- gress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch of- ficials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U. S. C. §2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either. Pp. 14–18.

(4) These factors can all be condensed to the concern for respecting the separation of powers. The most important question is whether Congress or the courts should create a damages remedy. Here the an- swer is Congress. Congress’s failure to act does not compel the Court to step into its shoes. Pp. 19–20.

885 F. 3d 811, affirmed.

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

Key Quote From Justice Ginsburg’s dissent:

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), this Court held that injured plaintiffs could pursue claims for damages against U. S. officers for conduct disregarding constitutional constraints. The in- stant suit, invoking Bivens, arose in tragic circumstances. In 2010, the complaint alleges, a Mexican teenager was playing with friends in a culvert along the United States- Mexico border. A U. S. Border Patrol agent, in violation of instructions controlling his office and situated on the U. S. side of the border, shot and killed the youth on the Mexican side. The boy’s parents sued the officer for damages in fed- eral court, alleging that a rogue federal law enforcement of- ficer’s unreasonable use of excessive force violated the Fourth and Fifth Amendments. At the time of the incident, it is uncontested, the officer did not know whether the boy he shot was a U. S. national or a citizen of another land. See Hernández v. Mesa, 582 U. S. ___, ___–___ (2017) (per curiam) (slip op., at 5–6).

When the case first reached this Court, the Court re- manded it, instructing the Court of Appeals to resolve a threshold question: Is a Bivens remedy available to noncit- izens (here, the victim’s parents) when the U. S. officer acted stateside, but the impact of his alleged wrongdoing

2 HERNANDEZ v. MESA GINSBURG, J., dissenting

was suffered abroad? To that question, the sole issue now before this Court, I would answer “yes.” Rogue U. S. officer conduct falls within a familiar, not a “new,” Bivens setting. Even if the setting could be characterized as “new,” plain- tiffs lack recourse to alternative remedies, and no “special factors” counsel against a Bivens remedy. Neither U. S. for- eign policy nor national security is in fact endangered by the litigation. Moreover, concerns attending the applica- tion of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders. I would therefore hold that the plaintiffs’ complaint crosses the Bivens threshold.

* * **

Regrettably, the death of Hernández is not an isolated in- cident. Cf. Rodriguez, 899 F. 3d, at 727 (complaint alleged that border agent fired 14 to 30 bullets across the border, killing a 16-year-old boy); Brief for Immigrant and Civil Rights Organizations as Amici Curiae 26–28 (describing various incidents of allegedly unconstitutional conduct by border and immigration officers); Brief for Border Network for Human Rights et al. as Amici Curiae 8–15 (listing indi- viduals killed by border agents). One report reviewed over 800 complaints of alleged physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012; in 97% of the complaints resulting in formal deci- sions, no action was taken. D. Martínez, G. Cantor, & W. Ewing, No Action Taken: Lack of CBP Accountability in Re- sponding to Complaints of Abuse, American Immigration Council 1–8 (2014), americanimmigrationcouncil.org/sites/

14 HERNANDEZ v. MESA GINSBURG, J., dissenting

default/files/research/No%20Action%20Taken_Final.pdf. Ac- cording to amici former Customs and Border Protection of- ficials, “the United States has not extradited a Border Pa- trol agent to stand trial in Mexico, and to [amici’s] knowledge has itself prosecuted only one agent in a cross- border shooting.” Brief for Former Officials of U. S. Cus- toms and Border Protection Agency as Amici Curiae 4. These amici warn that, “[w]ithout the possibility of civil li- ability, the unlikely prospect of discipline or criminal pros- ecution will not provide a meaningful deterrent to abuse at the border.” Ibid. In short, it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing.

***

I resist the conclusion that “nothing” is the answer re- quired in this case. I would reverse the Fifth Circuit’s judg- ment and hold that plaintiffs can sue Mesa in federal court for violating their son’s Fourth and Fifth Amendment rights.

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

This case is straightforward. Mesa a CBP Agent standing in the United States shot Hernandez, an unarmed 15-year-old Mexican standing in Mexico without justification. This violated Hernandez’s Fourth and Fifth Amendment rights. Had the lower Federal Courts and the Supremes applied the law on “Constitutional torts” correctly, Mesa would have been found liable. The Government probably would have settled with the Hernandez family.

Instead, nearly of decade of unnecessary litigation ensued during which all three levels of the U.S. Court System failed the Hernandez family and distorted our system of justice. Dissenting Fifth Circuit Judge (now Ambassador) Ed Prado summed up this legal farce in a single powerful phrase: “[the majority has been] led astray from the familiar circumstances of this case by empty labels of national security, foreign affairs, and extra- territoriality.” For the record, Ambassador Prado is a lifelong Republican. I worked with him on immigration litigation during the Reagan Administration.

Hey, just “business as usual” for a GOP Supremes’ majority that has checked the Constitution and their humanity at the door in their haste to “deconstruct America” and reconstitute it as the White Nationalist authoritarian state that the Trump regime embodies. Heck, corporations and guns have more rights that dead Mexican kids and their families under the majority‘s view. “Not their kids” as I’ve noted before. I do suspect that if members of their own families were being shot and killed by CBP, we would have a different result in cases like this. But, out of sight, out of mind. Wow, think of the potential foreign relations nightmare of CBP Agents stopped killing unarmed Mexican kids from our side of the border!

Not to be outdone by the majority’s legal gibberish cloaking moral abdication, Justices Gorsuch and Thomas wrote separately to signal Trump that they would like to do away with Bivens entirely while in the process of rewriting the laws in Trump’s image. Apparently recognizing that the GOP has effectively stymied Congress and that Trump intends to inflict many more legal and Constitutional abuses on the unfortunate non-white population, they would like to eliminate all restraints on the regime’s constant violations of law and abuses of individual rights. Obviously, from their exalted and privileged positions above the Constitutional, legal, and societal chaos affecting less fortunate individuals under the Trump regime, they haven‘t fully thought through want happens when Trump or the next White Nationalist demagogue comes for them and there is neither a rule or law nor anyone left to enforce it in a fair an impartial manner.

I’m not the only one who understands the ugly truth about the future of all of our individual rights and the lives of nonwhite individuals (citizens or not) that the Trump majority on the Supremes are attempting to hide with their opaque, yet lethal, legal gobbledygook. Ian Millhiser over at Vox News also sees though the smokescreen at what’s really happening here: “The Supreme Court just held that a border guard who shot a child will face no consequences” https://apple.news/AWWSBpk_aR6uAlmxmQIvZkw

As we’re finding out anew every day, the law and fair, impartial, and courageous judging is for suckers!

Due Process Forever; The “Roberts Five” Never!

PWS

02-26-20

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

Mark Joseph Stern
Reporter, Slate

https://slate.com/news-and-politics/2020/02/sotomayor-trump-wealth-test-bias-dissent.html

Mark Joseph Stern reports for 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.

Read the full article at the above link.

Here’s a link to Justice Sotomayor’s full dissent in Wolf v. Cook County:

SotomayorPublicChargeDissetn19a905_7m48

Justice Sonia Sotomayor

Here’s a “key quote” from Justice Sotomayor’s dissent:

These facts—all of which undermine the Government’s assertion of irreparable harm—show two things, one about the Government’s conduct and one about this Court’s own. First, the Government has come to treat “th[e] exceptional mechanism” of stay relief “as a new normal.” Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 5). Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming lim- ited Court resources in each. And with each successive ap- plication, of course, its cries of urgency ring increasingly hollow. Indeed, its behavior relating to the public-charge

6 WOLF v. COOK COUNTY SOTOMAYOR, J., dissenting

rule in particular shows how much its own definition of ir- reparable harm has shifted. Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one State.

Second, this Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.

Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timeta- bles and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the govern- ment.” Application 3.) They demand extensive time and resources when the Court’s intervention may well be unnec- essary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of ir- reparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Mur- phy v. Collier, 587 U. S. ___, ___ (2019) (second statement of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, J., joined by THOMAS and GORSUCH, JJ., dissenting from grant of stay) (slip op., at 6) (“When courts do not have ad- equate time to consider a claim, the decisionmaking process may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) (overturning the grant of a stay of execution). Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances— where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decision making process that this Court must strive to protect.

I respectfully dissent.

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

Of course, the regime’s use of manufactured and clearly bogus “national emergencies” or fake appeals to “national security” is a perversion of both fact and law, as well as a mocking of Constitutional separation of powers. This obscenely transparent legal ruse essentially was invited by the Roberts and his GOP brethren. Roberts somewhat disingenuously claims to be a “student of history.” But, whether he takes responsibility for it or not, he has basically invited Trump & Miller to start a new “Reichstag Fire” almost every week with migrants, asylum seekers, Latinos, and the less affluent as the “designated usual suspects.”

Powerful as her dissent is, Justice Sotomayor actually understates the case against her GOP colleagues. Every racist, White Nationalist, nativist, and/or authoritarian movement in American history has been enabled, advanced, and protected by morally corrupt and intellectually dishonest jurists who have intentionally provided “legal cover” for those official misdeeds. How about “states rights,” “separate but equal,” “plenary power,” and a host of other now discredited legal doctrines used to justify everything from slavery to denying voting, and other Constitutional rights including life itself to African Americans? They were all used to “cover” for actions that might more properly have been considered “crimes against humanity.”

Who knows what legal blather Roberts and his four fellow rightist toadies will come up with to further promote the destruction of humanity and the disintegration of American democracy at the hands of Trump, Miller, Barr, Putin, and the rest of the gang?

But, courageous “outings” like those by Justice Sotomayor will help insure that history will be able to trace the bloody path of needless deaths, ruined lives, wasted human potential, official hate mongering, and unspeakable human misery they are unleashing directly to their doors and hold them accountable in a way that our current system has disgracefully failed to do.

Trump was right about at least one thing: There are indeed “GOP Justices” on the Supremes wholly owned by him and his party. They consistently put GOP rightist ideology and and authoritarianism above the Constitution, human rights, the rule of law, intellectual honesty, and simple human decency. Other than that, they’re a “great bunch of guys!”

Due Process Forever; Complicit Courts Never!

PWS

02-22-20

GO FIGURE: BKavs Stands Up For Rights Of African-Americans, While Clarence Thomas Presents Incoherent & Disingenuous Defense Of Jim Crow!

https://slate.com/news-and-politics/2019/06/brett-kavanaugh-clarence-thomas-racist-juries-mississippi.html

Mark Joseph Stern reports for Slate:

Much of the Supreme Court’s 7–2 decision in Flowers v. Mississippi on Friday reads like a nightmare. The facts are straight out of the Jim Crow South: A white Mississippi prosecutor, Doug Evans, prosecuted a black man, Curtis Flowers, for the exact same crime six times in search of a capital conviction that might stick. In the process, Evans struck 41 of 42 black prospective jurors, an obvious attempt to secure an all-white jury. Several convictions were overturned due to flagrant prosecutorial misconduct. At Flowers’ sixth trial, however, Evans finally got a death sentence upheld by the Mississippi Supreme Court. Can that punishment possibly comport with the Constitution’s command of equal protection?

In a decision written by Justice Brett Kavanaugh, the U.S. Supreme Court said no, reversing Flowers’ conviction in light of obvious racial bias. To Kavanaugh’s credit, his opinion confronts Evans’ racism head-on and bolsters constitutional safeguards against prosecutorial attempts to purge minorities from juries. Meanwhile, Justice Clarence Thomas penned a scorching dissent, joined in part by Justice Neil Gorsuch, savaging the majority for trying to “boost its self-esteem” while “needlessly prolong[ing] the suffering of four victims’ families.” Thomas, in fact, is eager to overturn decades of precedent limiting prosecutors’ ability to exclude minority jurors on the basis of their race.

The facts of Flowers are simply appalling. In 1996, someone murdered four people at Tardy Furniture in Winona, Mississippi; Evans, the district attorney, decided Flowers was the killer. The evidence against Flowers was astonishingly meager: It rested largely on eyewitness testimonies, provided weeks and months after the crime, that often provided conflicting details. No eyewitnesses came forward until the state offered a $30,000 reward, and several later reported being coerced by prosecutors into implicating Flowers. Investigators never found DNA evidence or fingerprints tying Flowers to the murder. Instead, they identified a single particle of gunshot residue on Flowers’ hand—which, they acknowledged, could have come from the police car that took him to the station, or from the fireworks he set off the day before.

Throughout the six trials, three “jailhouse snitches” testified that Flowers confessed to them; each later recanted, admitting that they had lied. One conceded that he fabricated the confession to receive a sentence reduction. The victims were executed with chilling efficiency, several execution-style, yet Flowers had no criminal history; he did not even own a gun. His cousin, Doyle Simpson, owned the gun allegedly used in the killings. Multiple eyewitnesses saw a man who looked like Simpson outside Tardy Furniture on the morning of the crime. Their evidence was not contradictory or coerced.

Nonetheless, Evans relentlessly targeted Flowers, engaging in a quest to remove black Mississippians from the jury each time. He did so using peremptory strikes, which allow trial attorneys to strike prospective jurors without providing a reason. In 1986’s Batson v. Kentucky, the Supreme Court attempted to come up with a tool to combat racist peremptory strikes: If a defendant challenged a strike on racial grounds, prosecutors had to provide a “neutral explanation” for their decision. The court explained that the Constitution “forbids the States to strike black [jurors] on the assumption that they will be biased in a particular case simply because the defendant is black.” Otherwise, the “core guarantee of equal protection … would be meaningless.”

Nonetheless, at Flowers’ first trial, Evans used peremptory strikes to remove every potential black juror, obtaining an all-white jury that sentenced Flowers to death. The Mississippi Supreme Court reversed because the prosecution acted “in bad faith” by baselessly disputing the credibility of a defense witness and mentioning facts not in evidence. Next time around, Evans once again used his peremptory strikes to remove all black jurors, but this time the trial judge objected and seated one black juror. The jury convicted Flowers, but its verdict was reversed again for essentially the same reasons.

Third time up: Prosecutors used all their peremptory strikes to remove black prospective jurors. Only one black juror was seated. The jury sentenced Flowers to death, but the Mississippi Supreme Court reversed, finding a Batson violation. At the fourth and fifth trials, prosecutors ran out of peremptory challenges and had to settle for juries with multiple blacks. Both times, the jury failed to reach a verdict, resulting in mistrials. Finally, at Flowers’ sixth trial, prosecutors used five out of six peremptory strikes on black potential jurors. A jury of 11 whites and one black sentenced Flowers to death. He argued another Batson violation, but the Mississippi Supreme Court upheld his sentence, so he appealed to SCOTUS.

Technically, only the peremptory strikes at Flowers’ sixth trial are at issue in this case. But Kavanaugh recounted the history of Evans’ racist machinations and clarified that this “historical evidence” matters. Across Flowers’ many trials, he wrote:

[T]he State employed its peremptory strikes to remove as many black prospective jurors as possible. The State appeared to proceed as if Batson had never been decided. The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.

“We cannot ignore that history,” the justice concluded, when assessing Evans’ removal of blacks from the jury at Flowers’ most recent trial. “We cannot take that history out of the case.”

Kavanaugh also pointed to “dramatically disparate questioning of black and white prospective jurors in the jury selection process for Flowers’ sixth trial.” Prosecutors “asked the five black prospective jurors who were struck a total of 145 questions.” Yet they asked “the 11 seated white jurors a total of 12 questions.” Put differently, each prospective black juror was grilled with an average of 29 questions; each seated white juror was asked an average of one.

Why? By “asking a lot of questions of the black prospective jurors,” Kavanaugh wrote, “a prosecutor can try to find some pretextual reason—any reason—that the prosecutor can later articulate to justify what is in reality a racially motivated strike.” But a court “confronting that kind of pattern cannot ignore it.” This “lopsidedness” can demonstrate that the prosecutor was attempting to “disguise a discriminatory intent.”

Assessing all this damning evidence, Kavanaugh found that prosecutors struck at least one potential black juror from Flowers’ sixth trial on the basis of race. He tossed out the death sentence and sent the case back down to Mississippi for a new trial. Evans still serves as district attorney and could handle Flowers’ seventh trial—even though SCOTUS has now made clear that his conduct in this case has been permanently tainted by racism.

In dissent, Thomas accused the majority of taking Flowers’ case because it wanted to “scorn” Mississippi state courts, or perhaps “because the case has received a fair amount of media attention.” (The media, he warned, often prefers “to titillate rather than to educate and inform.”) Thomas dismissed Kavanaugh’s opinion as “manifestly incorrect,” insisting that Evans had perfectly good reasons to strike five black prospective jurors from the sixth trial. And he wrote that the majority “builds its decision around the narrative that this case has a long history of race discrimination. This narrative might make for an entertaining melodrama, but it has no basis in the record.” (It does; Thomas just rewrites the record to excuse every single instance of Evans’ egregious racial bias.)

Gorsuch joined those portions of the dissent, but declined to sign onto its most radical assertion: that Batson itself should be overruled. Black defendants tried by all-white jurors created by racist prosecutors, Thomas wrote, suffer “no legally cognizable injury.” The accused suffer no equal protection violation when they are tried by a jury selected on the basis of race. Moreover, prosecutors should be permitted to make “generalizations” about black jurors, because “race matters in the courtroom.” Thomas ended his screed by berating the court for “needlessly prolong[ing] the suffering of four victims’ families” in an effort to “boost its self-esteem,” and declared: “If the Court’s opinion today has a redeeming quality, it is this: The State is perfectly free to convict Curtis Flowers again.”

It’s an encouraging sign that Kavanaugh just ignored Thomas’ dissent, as it is really too wacky, too hostile, and aggrieved to merit a response. Rather, with a majority of the court behind him, Kavanaugh made the case that courts can identify discriminatory intent without a smoking gun of overt racism. Evans never used racial epithets in the courtroom or stated his desire for a white jury; his actions alone told the court everything it needed to know about his motivations. This Supreme Court may not always confront unconstitutional prejudice with such clear-eyed pragmatism, but it’s worth celebrating a decision that enforces constitutional limits on racist prosecutions.

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

I admit to not being a big BKavs fan. But, I appreciate his strong and courageous leadership on this case.

PWS

06-23-19

NEW PRECEDENT: BIA On “Receipt Of Stolen Property” –Matter of ALDAY-DOMINGUEZ, 27 I&N Dec. 48 (BIA 2017) — Still Getting It Wrong After All These Years — Read My “Dissenting Opinion!”

https://www.justice.gov/eoir/page/file/970806/download

Here’s the BIA headnote:

“The aggravated felony receipt of stolen property provision in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (2012), does not require that unlawfully received property be obtained by means of common law theft or larceny.”

PANEL: BIA Appellate Immigration Judges Pauley, Guendelsberger, and Kendall Clark

OPINION BY: Judge Pauley

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

I respectfully dissent.

The Immigration Judge got it right. Under the “plain meaning” of the statute, the respondent is not an aggravated felon. Therefore, the DHS appeal should be dismissed.

Nearly 17 years ago, when I was Chairman of the BIA, I joined the dissenting opinion of Judge Lory D. Rosenberg in a related case, Matter of Bhata, 22 I&N Dec. 1381 (BIA 2000) https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3437.pdf which is cited by this panel in Matter of Alday-Dominguez. Indeed, the panel relies on Bhata to support it’s incorrect decision.

However, as Judge Rosenberg pointed out cogently in her dissent:

Accordingly, the modifying parenthetical phrase helps only to elucidate the main clause of the provision. Although the language “theft offense” may require our interpretation, the parenthetical must be read according to its own terms in the context of that subsection of the Act. The phrase “(including receipt of stolen property)” after the word “offense” limits the crimes that are included within the phrase “theft offense.” United States v. Monjaras-Castaneda, supra, at 329 (citing John E. Warriner & Francis Griffith, English Grammar and Composition (Heritage ed., Harcourt Brace Jovanovich 1977)). Specifically, the parenthetical provides that a “theft offense” encompasses the particular offense of receiving stolen property (which, by implication and judicial interpretation, is not a theft).

Matter of Bhata, supra, at 1396 (Rosenberg, AIJ dissenting).

Clearly, as pointed out by Judge Rosenberg, under a “plain reading” of the statutory language, “receipt of stolen property” is a “subgroup” of a theft offense. Consequently, the unlawfully received property must have been obtained by “theft.” The California statute includes things other than property obtained by theft, specifically objects obtained by “extortion.”

Therefore, under the “categorical approach,” the California statute is broader than the aggravated felony offense described in section 101(a)(43)(G) of the Act. Accordingly, the DHS fails to establish that the respondent is removable under that section. Hence, the Immigration Judge correctly terminated removal proceedings, and the DHS appeal should be dismissed.

The majority is just as wrong today as it was in Bhata. Remarkably, a member of this panel, Judge Guendelsberger, along with Judge Gus Villageliu and Judge Neil Miller, joined our dissent in Bhata. Sadly, over the course of his unjustified exile, followed by re-education, rehabilitation, and reappointment to his Appellate Judgeship, my friend and colleague’s views must have changed since the days when he stood up with the rest of us for respondents’ legal rights against the majority of our colleagues who all too often bought the Government’s arguments, even when they were less than persuasive.

Just this week, in a unanimous decision written by Justice Clarence Thomas, the Supreme Court reinforced the “plain meaning” analysis in applying the categorical approach to an aggravated felony removal provision involving “sexual abuse of a minor.” Esquivel-Quintana v. Sessions, ___ U.S. ___ (2017). Yet, the panel seems “tone-deaf” to the very clear message from Justice Thomas and his colleagues about the impropriety of manipulating clear statutory language to achieve a finding of removal.

In conclusion, the respondent has not been convicted an of an aggravated felony under section 101(a)(43)(G) of the Act by virtue of his conviction for receiving stolen property under the California Penal Code. Consequently, the Immigration Judge reached the correct result, and the DHS appeal should be dismissed.

Therefore, I respectfully dissent from the panel’s decision to sustain the DHS appeal.

Paul Wickham Schmidt

Former BIA Chairman, Appellate Immigration Judge, & United States Immigration Judge (Retired)

Entered: June 2, 2017

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