Five Recent Court Rulings on Immigration Place the Subject in the Judicial Spotlight
Sunday, June 28, 2020
For nearly two years, immigration stakeholders and policymakers awaited action in the Supreme Court of the United States (SCOTUS) on the legality of the Trump Administration's September 2017 attempt to end the popular Obama-era Deferred Action for Childhood Arrivals program (DACA). As late June of 2020 approached, the pro-immigrant advocacy community braced itself for what it thought would certainly be a decision affirming the Administration's authority to rescind DACA. However, in a totally unexpected decision, on Thursday, June 18, 2020, SCOTUS ruled that the Administration improperly moved to rescind DACA, saving, for now at least, the hundreds of thousands of young people brought to the United States illegally while they were children.
The long-awaited SCOTUS DACA decision was just one of five consequential decisions issued by SCOTUS and lower federal courts on immigration matters in recent days.
The long-awaited SCOTUS DACA decision was just one of five consequential decisions issued by SCOTUS and lower federal courts on immigration matters in recent days.
- Sanctuary Cities. On Monday, June 15, 2020, without explanation, the Supreme Court of the United States said it will not take up a legal battle over whether state and local governments can declare themselves sanctuaries and refuse to help federal agents enforce immigration laws.
- DACA. On Thursday, June 18 2020, in a 5-4 opinion, written by Chief Justice John G. Roberts, Jr, the Supreme Court ruled that the Trump Administration had acted in an "arbitrary and capricious" manner when it attempted the rescind DACA, invalidating the action and inviting it to try again.
- Asylum. On Thursday, June 25, 2020, in a 7-2 Opinion, the Supreme Court of the United States affirmed the constitutionality of a law that limits the role federal courts may play in reviewing summary determinations of whether asylum seekers face a credible fear of persecution if they are returned to their home countries.
- Children in Detention. On Friday, June 26, 2020, the Federal District Court in Central California ordered the Trump Administration to release children in family detention due to the COVID-19 pandemic.
- The Wall. And also on Friday the 26th, in a 2-1 opinion, a panel of the Ninth Circuit Court of Appeals ruled that the Trump Administration's redirection of funds that had been appropriated for military construction in order to fund the construction of his proposed wall along the U.S. border with Mexico was unconstitutional.
These rulings will almost certainly provide fodder for further litigation, and well as for both legislative and political machinations in the coming weeks and years.
Sanctuary Cities
The "sanctuary city" issue has been hotly debated in Congress for decades. Indeed, each year Congress debates the contentious issue as it takes up its annual Homeland Security Appropriations Act, with amendments being offered in Committee and on the House or Senate floor to deny funding to states that have "sanctuary" policies. And it has become an issue in political campaigns at just about all levels, with countless television advertisements on the issue running in House, Senate, and presidential campaigns election cycle after election cycle.
In the sanctuary city case, the Supreme Court of the United States declined to take up a decision by the San Francisco, California-based Ninth Circuit Court of Appeals which earlier had ruled that local officials have no duty to help immigration agents enforce federal law. As is customary, SCOTUS declined to indicate why it will not take up the case. However, two of the SCOTUS's most conservative members, Associate justices Clarence Thomas and Samuel Alito, wrote that they would have voted to hear the case.
The Trump Administration asked the court to hear its appeal of lower court rulings that upheld a California law baring police departments and sheriff's offices from notifying federal agents when immigrants are about to be released after serving sentences for local crimes.
The lower courts are divided on the issue. Two other federal courts of appeal agreed with the Ninth Circuit, upholding sanctuary city provisions in the Chicago-based Seventh Circuit and the Philadelphia-based Third Circuit. However, the New York, Connecticut, and Vermont-based Second Circuit Court of Appeals has ruled that the U.S. Department of Justice can deny federal funding to cities and states that consider themselves sanctuaries and refuse to share information with federal immigration authorities.
In the sanctuary city case, the Supreme Court of the United States declined to take up a decision by the San Francisco, California-based Ninth Circuit Court of Appeals which earlier had ruled that local officials have no duty to help immigration agents enforce federal law. As is customary, SCOTUS declined to indicate why it will not take up the case. However, two of the SCOTUS's most conservative members, Associate justices Clarence Thomas and Samuel Alito, wrote that they would have voted to hear the case.
The Trump Administration asked the court to hear its appeal of lower court rulings that upheld a California law baring police departments and sheriff's offices from notifying federal agents when immigrants are about to be released after serving sentences for local crimes.
The lower courts are divided on the issue. Two other federal courts of appeal agreed with the Ninth Circuit, upholding sanctuary city provisions in the Chicago-based Seventh Circuit and the Philadelphia-based Third Circuit. However, the New York, Connecticut, and Vermont-based Second Circuit Court of Appeals has ruled that the U.S. Department of Justice can deny federal funding to cities and states that consider themselves sanctuaries and refuse to share information with federal immigration authorities.
Deferred Action for Childhood Arrivals
For nearly two decades now, Congress and the nation have been transfixed by the plight of millions of young people living in the United States who were brought to the country illegally when they were young children and who have lived most of their lives here. The DREAM Act, which seeks to resolve their situation, was first introduced in 2001. It has been passed by either the U.S. House of Representatives or the Senate on three separate occasions since. However, the two bodies have never done so in the same year.
President Barack Obama devised DACA in 2012 to address a relatively small subset of the DREAMER population: Over the years, it has protected as many as 909,700 young people from removal and afforded them work authorization. It was immediately the subject of litigation from opponents of immigration who sought to invalidate the program, as well as by stakeholders and pro-immigrant advocates who have sought to prevent the Trump Administration from ending it.
In a totally unexpected decision, the Supreme Court of the United States has ruled that the Trump Administration improperly moved to rescind DACA. The Court issued its 5-4 opinion written by Chief Justice John G. Roberts, Jr, on Thursday, June 18, 2020, threw the ball into the hands of the Trump Administration to decide if it will make another attempt to end the popular program.
The Administration has the option of trying again right away to bring the program to an end, waiting until after the election to do so, or permitting the program to continue in place for the remainder of the Trump presidency. Early indications from the Administration is that it will move soon to try again to end the program.
Joining the Chief Justice in the 5-4 decision were the four Court liberals, Associate Justices Ruth Bader Ginsburg, Steven G. Breyer, Sonia Sotomayor, and Elana Kagan.
In the ruling, Roberts wrote that the Administration violated the Administrative Procedures Act when it attempted to rescind the program, saying that it did not properly weigh how ending the program would affect those who had come to rely on its protections against deportation, and the ability to work legally. He wrote in his opinion that the Administration had not "complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”
President Barack Obama devised DACA in 2012 to address a relatively small subset of the DREAMER population: Over the years, it has protected as many as 909,700 young people from removal and afforded them work authorization. It was immediately the subject of litigation from opponents of immigration who sought to invalidate the program, as well as by stakeholders and pro-immigrant advocates who have sought to prevent the Trump Administration from ending it.
In a totally unexpected decision, the Supreme Court of the United States has ruled that the Trump Administration improperly moved to rescind DACA. The Court issued its 5-4 opinion written by Chief Justice John G. Roberts, Jr, on Thursday, June 18, 2020, threw the ball into the hands of the Trump Administration to decide if it will make another attempt to end the popular program.
The Administration has the option of trying again right away to bring the program to an end, waiting until after the election to do so, or permitting the program to continue in place for the remainder of the Trump presidency. Early indications from the Administration is that it will move soon to try again to end the program.
Joining the Chief Justice in the 5-4 decision were the four Court liberals, Associate Justices Ruth Bader Ginsburg, Steven G. Breyer, Sonia Sotomayor, and Elana Kagan.
In the ruling, Roberts wrote that the Administration violated the Administrative Procedures Act when it attempted to rescind the program, saying that it did not properly weigh how ending the program would affect those who had come to rely on its protections against deportation, and the ability to work legally. He wrote in his opinion that the Administration had not "complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”
Judicial Review of Summary Denials of Asylum Claims
| In 1996, Congress enacted a law providing for expedited removal of persons suspected of illegally being at or near a U.S. port of entry. The law, further, limited the jurisdiction of courts to review certain aspects of summary decisions by immigration officials in expedited removal cases, including determinations that such a person who is seeking asylum does not have a "credible fear of persecution." In a lopsided decision, the Supreme Court came down on the side of the Trump Administration and immigration restrictionists last week, ruling that the aspects of the law limiting the role of federal courts in reviewing such summary decisions was constitutional. Writing for the majority on the Court, Associate Justice Samuel A. Alito Jr., wrote that asylum claims threatened to overwhelm the immigration system. Congress was entitled to respond to that crisis by enacting a law that limited the role federal courts may play in reviewing summary determinations of whether asylum seekers faced a credible fear of persecution were they returned to their home countries. The five more conservative members of the Court were joined by liberals Ruth Bader Ginsburg and Steven Breyer in the surprisingly lopsided 7-2 ruing. In dissent, Associate Justice Sonia Sotomayor, joined by Associate Justice Elena Kagan, said the majority had damaged the rule of law. The case before the Court involved a national of Sri Lanka who was apprehended about 25 yards north of the Mexican border near San Ysidro, California. He sought asylum. However, the interviewing officer found that his claims did not represent a credible fear of persecution. The asylum seeker filed a petition for a writ of habeas corpus in federal court. A trial judge rejected the petition, saying it was barred by the 1996 law. However, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled the law unconstitutional, saying that it violated a clause in the Constitution that says that “the privilege of the writ of habeas corpus shall not be | suspended, unless when in cases of rebellion or invasion the public safety may require it.” Associate Justice Alito wrote that the clause did not cover claims like the one that the asylum seeker pressed, writing that “Habeas has traditionally been a means to secure release from unlawful detention but respondent invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country.” Continuing, he wrote that “While respondent does not claim an entitlement to release, the government is happy to release him — provided the release occurs in the cabin of a plane bound for Sri Lanka.,” In dissent, Associate Justice Sotomayor questioned that analysis, writing “Respondent asks merely to be freed from wrongful executive custody,” she wrote. “He asserts that he has a credible fear of persecution, and asylum statutes authorize him to remain in the country if he does.” Alito also asserted that the respondent was not protected by the Constitution’s due process clause even though he was apprehended within the United States, writing that “While aliens who have established connections in this country have due process rights in deportation proceedings, the court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the due process clause.” In response, Justice Sotomayor questioned why the majority was addressing that issue at all. “The court stretches to reach the issue whether a noncitizen like respondent is entitled to due process protections in relation to removal proceedings, which the court below mentioned only in a footnote and as an aside,” she wrote. While Associate Justices Gnsburg and Breyer agreed with her on that broad point, they sided with the majority on the more narrow question. |
Detention of Unaccompanied Children
On November 21, 1999, five year-old Elián González, his mother, and twelve others left Cuba on a small aluminum boat with a faulty engine; González's mother and ten others died in the crossing. González and the other two survivors floated at sea until they were rescued by two fishermen, who handed them over to the U.S. Coast Guard. In the months that followed, a battle raged between Gonzalez's father in Cuba, distant relatives of his in the United States, and immigration authorities in the United States over whether Gonzalez should be returned to live in Cuba with his father or permitted to remain in the United States. At the same time, a completely unrelated legal battle was being waged in the federal courts of over the care and treatment of unaccompanied alien children found in the United States. The two situations eventually would merge, resulting in the enactment of legislation designed to protect unaccompanied alien children found in the United States and spurring a pitched battle between immigration advocates and immigration restrictionists.
Two years before Gonzalez washed up in the waters off of Florida, immigration advocates reached a settlement with the Clinton Administration over the treatment of unaccompanied alien children in federal custody,. The agreement, embodied in the Flores Stipulated Settlement Agreement of January 17, 1997, established criteria for the care and treatment of such children.
Beginning in 2002 and later in 2008, Congress enacted legislation enshrining some of the concepts of the Flores Agreement into law. It did so, first, in the Homeland Security Act of 2002, which delegated to the Department of Health and Human Services responsibility for the care and placement of unaccompanied alien children, for the first time separating that responsibility from the agency that is responsible for deporting them. Second, it did so in section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, which established a number of rights for UACs, including the right to be released from detention and kept in the least restrictive environment.
On Friday, June 26, 2020, the Federal District Court in Central California ordered the Trump Administration to release migrant children who have been held for more than 20 days in three family detention centers in Texas and Pennsylvania run by Immigration and Customs Enforcement (ICE), ruling that the children must be released .by July 17, 2020 due to the COVID-19 pandemic.
Under the order by Judge Dolly M. Gee of the US District Court for the Central District of California, the children in question must be released with their parents or to "available suitable sponsors or other available COVID-free non-congregate settings" with the consent of their parents or guardians.
As of June 8, there were 124 children in ICE custody.
Two years before Gonzalez washed up in the waters off of Florida, immigration advocates reached a settlement with the Clinton Administration over the treatment of unaccompanied alien children in federal custody,. The agreement, embodied in the Flores Stipulated Settlement Agreement of January 17, 1997, established criteria for the care and treatment of such children.
Beginning in 2002 and later in 2008, Congress enacted legislation enshrining some of the concepts of the Flores Agreement into law. It did so, first, in the Homeland Security Act of 2002, which delegated to the Department of Health and Human Services responsibility for the care and placement of unaccompanied alien children, for the first time separating that responsibility from the agency that is responsible for deporting them. Second, it did so in section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, which established a number of rights for UACs, including the right to be released from detention and kept in the least restrictive environment.
On Friday, June 26, 2020, the Federal District Court in Central California ordered the Trump Administration to release migrant children who have been held for more than 20 days in three family detention centers in Texas and Pennsylvania run by Immigration and Customs Enforcement (ICE), ruling that the children must be released .by July 17, 2020 due to the COVID-19 pandemic.
Under the order by Judge Dolly M. Gee of the US District Court for the Central District of California, the children in question must be released with their parents or to "available suitable sponsors or other available COVID-free non-congregate settings" with the consent of their parents or guardians.
As of June 8, there were 124 children in ICE custody.
Funding for Construction of a Border Wall
From the moment President Trump was sworn into office, a battle has raged between Congress and his Administration over his campaign pledge to construct a wall between the United States and Mexico and to force Mexico to pay for it. A bipartisan majority of both the House and Senate have explicitly refused to fund the project. However, President Trump has persisted, seizing funds appropriated for other purposes to fund the construction of the project.
The Sierra Club and the Southern Border Communities Coalition filed suit against the Administration in an attempt to stop the transfer of funds. In a decision that is likely to be appealed to the Supreme Court of the United States, the Ninth Circuit Court of Appeals ruled on Friday, June 26, 2020, that, absent Congressional approval, the Trump Administration did not have the authority to transfer $2.5 billion that Congress had previously appropriated for Department of Defense military construction projects in order to fund the construction of his proposed wall between the United States and Mexico. But the ruling will not immediately halt construction. Last July, the Supreme Court of the United States overturned a separate appellate decision and allowed the Trump Administration to move forward with wall building, using $2.5 billion originally allocated to counterdrug programs at the Defense Department.
In Friday's 2-to-1 decision, the majority on the panel agreed with a lower court decision that the Trump Administration did not have the authority to reallocate the funds without approval from Congress, writing, “These funds were appropriated for other purposes, and the transfer amounted to ‘drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause’” of the U.S. Constitution.
The Administration contends that it has used the funding that it has seized to complete the construction of 216 miles of new border wall. However, all but three of the miles of wall have replaced existing fencing.
The Sierra Club and the Southern Border Communities Coalition filed suit against the Administration in an attempt to stop the transfer of funds. In a decision that is likely to be appealed to the Supreme Court of the United States, the Ninth Circuit Court of Appeals ruled on Friday, June 26, 2020, that, absent Congressional approval, the Trump Administration did not have the authority to transfer $2.5 billion that Congress had previously appropriated for Department of Defense military construction projects in order to fund the construction of his proposed wall between the United States and Mexico. But the ruling will not immediately halt construction. Last July, the Supreme Court of the United States overturned a separate appellate decision and allowed the Trump Administration to move forward with wall building, using $2.5 billion originally allocated to counterdrug programs at the Defense Department.
In Friday's 2-to-1 decision, the majority on the panel agreed with a lower court decision that the Trump Administration did not have the authority to reallocate the funds without approval from Congress, writing, “These funds were appropriated for other purposes, and the transfer amounted to ‘drawing funds from the Treasury without authorization by statute and thus violating the Appropriations Clause’” of the U.S. Constitution.
The Administration contends that it has used the funding that it has seized to complete the construction of 216 miles of new border wall. However, all but three of the miles of wall have replaced existing fencing.
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