Recently in Immigration Category

The U.S. Supreme Court this morning went back into the area of criminal defense lawyers giving bad advice on the immigration consequences of a conviction, a can of worms it opened in its 2010 decision of Padilla v. Kentucky.  Today's case is Lee v. United States, No. 16-327.

Jae Lee was a legal permanent resident who was caught dealing ecstasy.  When offered a plea deal, he asked his retained attorney about immigration consequences and was assured he would not be deported.  "According to Lee, the lawyer assured him that if deportation was not in the plea agreement, 'the government cannot deport you.' "  Wow.  What an idiot, if that was really the basis of his advice.  Dealing drugs is an "aggravated felony" under immigration law.  As such it results in mandatory deportation, and no, Bozo, it doesn't have to be in the plea agreement.

The two prongs of an ineffective assistance claim are deficient performance and resulting prejudice.  Here we have deficient performance in spades.  How about prejudice?  Is a defendant prejudiced by a plea deal when the prosecution has a slam-dunk case for guilt that almost certainly would have resulted in a higher sentence plus deportation anyway?  The majority, per C.J. Roberts, says yes.  Justice Thomas, joined by Justice Alito, dissents.  Justice Gorsuch did not participate.

Materiality

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Today's theme out of the United States Supreme Court is materiality.  If you describe what happened in a case and people look puzzled and ask "So what?" you have a materiality issue.

Maslenjak v. United States, No. 16-309, involves the crime of lying in the naturalization process.  It is error to instruct the jury that they can convict on finding a false statement without also finding that the falsity somehow contributed to the decision.

Turner v. United States, 15-1503, involves the rule of Brady v. Maryland that prosecutors must turn over to the defense any material exculpatory evidence in their possession.  "Material" in this context means a reasonable probability it would have made a difference in the result.  The Court holds 6-2 that the evidence in this case was not material.

Weaver v. Massachusetts, No. 16-240, involves a claim that the defendant's trial lawyer was ineffective for failure to object to the exclusion of the public (including the defendant's mother) from an overcrowded courtroom during jury selection.  Violation of the public trial right is a "structural error," reversible without any showing that it mattered, but that claim was forfeited by failure to object.  Ineffective assistance of counsel is reversible only upon a showing of "prejudice" which means the same thing as "materiality" in the Brady context, i.e., a reasonable probability it made a difference.  The Court held that the prejudice requirement continues to apply even when the underlying error is "structural," or at least this particular subspecies of structural errors, and no prejudice has been shown here.

Justice Kennedy wrote the opinion of the Court.  Justice Thomas wrote a concurring opinion.  Justice Alito wrote an opinion concurring in the judgment.  Justice Gorsuch joined all three.  Justice Breyer dissented, joined by Justice Kagan.  CJLF filed an amicus brief in this case, written by Kym Stapleton.

Travel Ban Case Goes to SCOTUS

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Jess Bravin and Brent Kendall report for the WSJ:

The Trump administration late Thursday asked the Supreme Court to revive its plan to temporarily ban travelers from six largely Muslim countries from entering the U.S., a major legal test for one of the president's most controversial initiatives.

"The Constitution and acts of Congress confer on the president broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the nation's interest," the Justice Department said in a petition. The administration said the plan--which would put a 90-day halt on the entry of individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen--is needed as a means to "prevent infiltration by foreign terrorists."
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A federal district judge in Hawaii also blocked the ban, and last month the Ninth Circuit, sitting in Seattle, heard the administration's appeal. In Thursday night's filings, the Justice Department asked the Supreme Court to stay the Hawaii court order as well while its appeal proceeds.

Since the order by its terms expires in 90 days, this is one of those cases where the "preliminary" proceedings are, in fact, the whole ball game.  By the time the case reaches final judgment in the normal course, it will be moot.

The certiorari petition in the Fourth Circuit case is Trump v. International Refugee Assistance Project, No. 16-1436.  The stay application in the same case is 16A1190.  The application, certiorari petition, and appendix are available as a single PDF file here. The stay application in the Hawaii case is 16A1191.
In Esquivel-Quintana v. Sessions, No. 16-54, the U.S. Supreme Court today waded once again into the messy question of what is an "aggravated felony" for the purpose of the federal law that says aliens who commit such felonies may be deported.

The question is messy for two reasons.  First, making legal consequences depend on judgments entered under the varying criminal laws of 50 states, the federal government, and the various other self-governing entities is an inherently messy problem.  Second, the law is poorly drafted and fixing it has not been a priority for Congress.

This case deals with the "age of consent" problem.
Far too often, people run to the courts claiming that some action of the executive or legislative branch is unconstitutional when their basis is really nothing more than strong disagreement with the merits of the decision.  It is refreshing to see a recognition of the important difference in this editorial in the WaPo.

Much as we find Mr. Trump's travel ban offensive, imprudent and unwise; much as we believe it inflicts real harm not just on America's foreign policy objectives but also on families, communities and institutions in the United States, it's fair to wonder whether it really amounts to an attack on Islam and an affront to the Constitution.
That's a step in the right direction, but understated.  There is no need to wonder.  The order is well within the President's legal and constitutional authority, as I have explained previously on this blog.  Of course the Post is entitled to its opinion on the wisdom of the policy, which I won't get into here.  We should give credit where it is due for seeing the difference between "offensive" and "unconstitutional," a difference too seldom recognized.
One thing that really makes my eyes roll is seeing someone state the question presented in a case in a way that assumes one side of a hotly disputed point and then phrases the "question" as something that no one would dispute based on that assumption.  It's bad enough when advocates do it.  It is inexcusable for a judge to do it.  For the majority of a U.S. Court of Appeals en banc to join an opinion doing that is a head-shaker.  The Fourth Circuit opinion in the travel ban case, International Refugee Assistance Project v. Trump, No. 17-1351, begins:

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains "a law for rulers and people, equally in war and in peace." And if so, whether it protects Plaintiffs' right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.
I don't have time at present to write up a complete analysis of the opinion, but right out of the gate this seems to call for Supreme Court review.
A little less than a month ago, I discussed the preliminary injunction issued by the federal district court in San Francisco regarding the section of President Trump's Executive Order 13768 that deals with so-called sanctuary cities and federal grants.  Judge Orrick badly misconstrued the order for the evident purpose of striking it down, and he refused to accept the reasonable interpretation that was offered by counsel for the government and was entirely consistent with the text.

I have been working on an amicus brief arguing for reversal of this ill-considered injunction and wondering what was taking the government so long to file its notice of appeal.  This afternoon I got the answer.

Attorney General Sessions has issued a memorandum on the implementation of the defunding provision of the Executive Order.  The memorandum clarifies several important points:

  • The provision applies only to grants administered by the Departments of Justice and Homeland Security.  Grants for health care, education, and other purposes from other departments are not affected.
  • A "sanctuary jurisdiction" for the purpose of the defunding provision (§9(a)) is one that "willfully refuse[s] to comply with 8 U.S.C. 1373."  That statute forbids a jurisdiction to prohibit information sharing regarding immigration status.  It has nothing to do with policies against honoring ICE detainers.
  • Conditions of §1373 compliance will only be placed on future grants when a statute authorizes DoJ or DHS to do so.  The Executive Order does not and does not purport to authorize the executive branch to impose new conditions not authoritized by statute.
  • Grants previously issued without §1373 compliance conditions are not going to be clawed back.
Most of this was clear enough at the time the injunction was issued, but the issuance of an official document to this effect further undercuts Judge Orrick's already shaky order.
In this post, I noted that the same Baltimore State's Attorney's Office that presided over both the disastrous Freddie Gray prosecutions and a startling increase in murder now proposes to use a harsher standard for charging decisions against American citizens (and, presumably, legal immigrants) than it will employ against illegal immigrants.

The stated rationale for this is that illegal immigrants face adverse collateral consequences, to wit, that, if standing immigration law is enforced instead of ignored, they may get deported.  The actual reason for such a blatantly discriminatory policy is, as you would expect, political:  Illegal immigrants are a favored constituency of the party that runs the State's Attorney's Office.

One question to ask here is what liberals' reaction would be if it worked the other way around, i.e., if there were overt discrimination in law enforcement in favor of American citizens and against illegal immigrants.  Not that there need be much head scratching about the answer. 

Can anything be done about this upside-down prosecutorial world?
Siobhan Hughes reports for the WSJ on the deal to fund the government through September 30:

The deal also includes $1.5 billion for border security, with the money to be spent on technology and on repairing existing infrastructure, the aide said.
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But the package says explicitly that the money can't be used to pay for the construction of the new border wall that Mr. Trump has made a signature project, a blow to the White House.

Fine with me.  Border security is the true need, and in many places on the border the best bang for the buck may not be a physical wall.  Rome wasn't built in a day, and border security won't be either, so doing the non-wall parts first is fine.

And maybe come September 30 we could have an actual, annual federal budget instead of continuing resolutions with periodic shutdown threats.  Wouldn't that be nice? 

How would we get that past filibustering Democrats?  Here is my suggestion.

The Sanctuary City Case

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Within days of his inauguration, President Trump signed Executive Order 13768.  Section 9 of that order addressed so-called "sanctuary cities."  The header paragraph and subdivision (a) read (emphasis added):

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
This section has been challenged in court as illegal and unconstitutional.

If it occurs to you that a direction from the chief executive to his subordinates that is expressly limited by its terms to actions "consistent with law" cannot possibly be illegal, congratulations, you understand law better than a federal district judge.

Amplifying Molehills Into Mountains

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This story reminds me of an old REO Speedwagon song:

But I know the neighborhood
And talk is cheap when the story is good
And the tales grow taller on down the line
Ian Millhiser, the Justice Editor at ThinkProgress, informs us:

President Trump "is considering a proposal to mobilize as many as 100,000 National Guard troops to round up unauthorized immigrants, including millions living nowhere near the Mexico border," according to the Associated Press.
But AP did not say that.  Notice the placement of the opening quotation mark.

A Flawed Restraining of a Flawed Order

Michael McConnell, Stanford Law Professor and Hoover Institution scholar, has this article at Hoover on last week's Ninth Circuit decision.

Lesson 3: Judge-Shopping Must Be Curbed

Here is the third lesson to be learned from the debacle noted this morning.

Plaintiffs seeking to enjoin government actions have way too much choice where to file their suits.  Further, there is not enough control on conflicting decisions when it comes to injunctions.

The WSJ article noted in a previous post this morning reports on the development of the strategy of the opponents:

Democratic attorneys general and their aides held a series of conference calls. They agreed to mount separate lawsuits across the country. The goal: try lots of different arguments to block the ban in hopes that one of them would succeed.

Minnesota's attorney general, Lori Swanson, joined the Washington lawsuit. New York Attorney General Eric Schneiderman joined the American Civil Liberties Union's case in federal court in Brooklyn. Massachusetts Attorney General Maura Healey did the same with an ACLU case in Boston.

Not only did they throw as much against the wall as they could to see what stuck, they threw it against as many walls as they could, and it only needed to stick to one.  Judge Gorton in Boston declined to extend his earlier, temporary block of the executive order, but Judge Robart in Washington did block it, and the result was that it was blocked.  Conceivably, a group of persons opposed to some government action could file coordinated suits in every district in the country, and they would only have to win one to get a halt for the time being.

Even when only one suit is filed, broad venue rules and "related case" rules give the challengers too much leeway to steer cases to the judges they know will be favorable to them.  The habeas corpus "fast track" regulations were held up for over three years by order of a judge with no jurisdiction in a case steered to her in exactly that manner.

Congress should take a hard look at the rules regarding venue in cases that seek nationwide injunctions.  "Venue" sounds like a boring subject, but this case illustrates how much it can matter.

A Debacle and a Learning Moment

The WSJ has this editorial titled Trump's Judicial Debacle noting a number of ways that the Administration and the courts were both wrong. "President Trump's immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy."

The editorial goes to explain several ways the Ninth Circuit decision is wrong and how the Administration seemed ill-prepared to defend the order.  At the end, the editorial has some worthwhile thoughts on what to do now.

There are lessons to be learned from this debacle, though.  I will note a few of them in separate posts.
Jose de Cordoba and Santiago Perez have this article in the WSJ with the above headline.

MEXICO CITY--Influential Mexicans are pushing an aggressive and perhaps risky strategy to fight a likely increase in deportations of their undocumented compatriots in the U.S.: jam U.S. immigration courts in hopes of causing the already overburdened system to break down.

The proposal calls for ad campaigns advising migrants in the U.S. to take their cases to court and fight deportation if detained. "The backlog in the immigration system is tremendous," said former Foreign Minister Jorge Castañeda. The idea is to double or triple the backlog, "until [U.S. President Donald] Trump desists in this stupid idea," he added.

Talk about stupid ideas.  A concerted attack on our judicial system by foreign influences might just spur Congress to fund a big expansion of the system and thereby increase deportations.  Nothing makes Americans come together quite like being attacked from outside.  "Perhaps risky" is an understatement.

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