Recently in Immigration Category

Sanctuary City Cases Appealed

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This morning the Government appealed the final injunctions against the enforcement of Section 9(a) of Executive Order 13768, "Enhancing Public Safety in the Interior of the United States," 82 Fed. Reg. 8799 (Jan. 25, 2017).  That subsection directs the Attorney General and the Secretary of Homeland Security to withhold Federal grants "to the extent consistent with law" from "jurisdictions that willfully refuse to comply with 8 U.S.C. 1373."

The Government had previously appealed the grant of a preliminary injunction, but that appeal is mooted by the grant of the permanent injunction.

The cases are:
City and County of San Francisco v. Donald Trump et al., No. 17-17478
County of Santa Clara v. Donald Trump et al., No. 17-17480.

Government Wins DACA Skirmish

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The Government won a preliminary skirmish in the Supreme Court in the battle over the Deferred Action for Childhood Arrivals (DACA) program.  In the case of In re United States, et al., No. 17A570, the high court ordered:

The application for a stay presented to Justice Kennedy and by him referred to the Court is granted, and the District Court's September 22, 2017, October 17, 2017,and November 20, 2017 orders, to the extent they require discovery and addition to the administrative record filed by the Government, are stayed pending disposition of the Government's petition for a writ of mandamus or in the alternative a writ of certiorari.

Responses to the Government's petition for a writ of mandamus or in the alternative a writ of certiorari must be filed by Wednesday, December 13, 2017 at 4:00 p.m.
Justice Breyer dissents in an opinion joined by Justices Ginsburg, Sotomayor, and Kagan.

The main case is 17-801.

"Travel Ban 3.0" Injunction Stayed

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From the U.S. Supreme Court in Trump v. Hawaii, No. 17A550:

The application for a stay presented to Justice Kennedy and by him referred to the Court is granted, and the District Court's October 20, 2017 order granting a preliminary injunction is stayed pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.

In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch.

Justice Ginsburg and Justice Sotomayor would deny the application.
Essentially the same order was entered in the Fourth Circuit case, 17A560.

Note that, unlike "Travel Ban 2.0," the stay is not selective.  The preliminary injunctions are stayed in their entirety.
Max Greenwood reports for The Hill:

A federal warrant has been issued for the arrest of a Mexican immigrant acquitted Thursday evening of murder charges in the 2015 killing of Kate Steinle.

Steinle's death has been taken up by opponents of so-called sanctuary cities. They argue that stricter immigration enforcement would have kept Jose Ines Garcia Zarate, who is residing in the U.S. illegally and was deported five separate times before the 2015 shooting, off the streets.

The arrest warrant unsealed in the Western District of Texas by the Justice Department on Friday accuses Zarate of violating his supervised release.

Given his record, once he is safely in federal custody he can surely be charged with federal weapons violations which can put him away for a long time.

U.S. Asks SCOTUS For Travel Ban Stay

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Back in September, the 90-day travel ban on immigration from six particularly problematic countries expired, and in October the Supreme Court dismissed the challenges to the ban as moot.  See posts of September 24, September 26, October 10 and October 24. As envisioned in the original executive order, the short-term ban was replaced by a more detailed, considered rule based on the ability and willingness of the countries at issue (a somewhat different set from the prior six) to provide the information needed to vet those seeking entry.

Despite the marked differences in the orders, a U.S. District Judge in Hawaii granted a temporary restraining order against enforcement of the key section except as to Venezuela and North Korea. A single district judge, it seems, is now better suited than the Department of Homeland Security to determine if the means chosen by DHS, in consultation with the Departments of State and Defense, is a good fit to the end to be achieved on a matter of national security and foreign relations. Or at least he thinks he is.

The government consented to the conversion of the TRO to a preliminary injunction to make it appealable. The Ninth Circuit stayed the injunction, with the major exception of "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." That is a hole you can drive a truck through (a truck loaded with explosives), so the government has asked the Supreme Court for a complete stay.

Aloha, Hawaii Travel Ban / Refugee Case

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On October 10, I noted the U.S. Supreme Court's order declaring the 90-day travel ban case moot, vacating the Fourth Circuit's decision, and remanding the case with directions to dismiss it.  At the time I made this prediction:

The companion Hawaii case from the Ninth Circuit addresses two other provisions in addition to the 90-day ban.  A provision limiting the number of refugees in the fiscal year just ended became moot on October 1.  A 120-day provision will become moot 120 days from the day the Supreme Court partially lifted the stay on it, which will be later this month.  I expect a similar disposition of that case at that time.
That was not one of my bolder predictions.  It was more like shooting fish in a barrel.  Today, sure enough, the Court issued this order:
The U.S. Supreme Court has issued the following order in Trump v. IRAP, No. 16-1436, the Fourth Circuit case challenging the 90-day ban on travel from six countries where the U.S. was unable to properly vet admittees (bold-face added):

We granted certiorari in this case to resolve a challenge to "the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780." Because that provision of the Order "expired by its own terms" on September 24, 2017, the appeal no longer presents a "live case or controversy." Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
The portion I have bold-faced means that the obnoxious Fourth Circuit opinion is wiped out as precedent.  CJLF's brief in the case, which urged precisely this result, is here.  At the time of the main briefing, we were the only ones calling for this, although in a supplemental letter brief in response to the Court's request the Solicitor General came around.

The companion Hawaii case from the Ninth Circuit addresses two other provisions in addition to the 90-day ban.  A provision limiting the number of refugees in the fiscal year just ended became moot on October 1.  A 120-day provision will become moot 120 days from the day the Supreme Court partially lifted the stay on it, which will be later this month.  I expect a similar disposition of that case at that time.

Travel Ban Case Off Calendar

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As noted in this post Sunday, the 90-day travel ban in the case before the Supreme Court expired on that day and was replaced by a very different order.  The 120-day refugee restriction will expire in October.  Yesterday the Supreme Court took the case off the calendar and ordered the parties to further brief the mootness issue:

The parties are directed to file letter briefs addressing whether, or to what extent, the Proclamation issued on September 24, 2017, may render cases No. 16-1436 and 16-1540 moot. The parties should also address whether, or to what extent, the scheduled expiration of Sections 6(a) and 6(b) of Executive Order No. 13780 may render those aspects of case No. 16-1540 moot. The briefs, limited to 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before noon, Thursday, October 5, 2017. The cases are removed from the oral argument calendar, pending further order of the Court.
CJLF's amicus brief supporting neither party, specifically on mootness, is here.  Amy Howe has this post at Howe on the Court, republished at SCOTUSblog.

Replacing the Travel Ban

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Laura Meckler reports for the WSJ:

The Trump administration is preparing to replace its controversial travel ban--which sought to bar almost all travel to the U.S. from six countries--with more targeted restrictions affecting a slightly larger number of countries, people familiar with the process said.

Rather than ban travel altogether from the nations on the new list, the new order is set to create restrictions that vary by country, based on cooperation with U.S. mandates, the threat posed by each country and other factors, these people said.

*      *      *

The new rules are scheduled to be announced by Sunday, when the existing, 90-day travel ban expires. The ban now applies to people from Iran, Libya, Somalia, Sudan, Syria and Yemen.

Doesn't the expiration of the 90-ban make the challenge presently before the Supreme Court moot?  Yes, IMHO, and that is what CJLF's amicus brief supporting neither party says.

What happens to the case?  Our brief says that under the Munsingwear rule the Court should vacate the lower court opinion and remand with directions to dismiss.  That would wipe out the lower court opinion as precedent.  Where does the rule's name come from?  In World War II, there were price controls on nearly everything, including underwear.  A dispute over them became moot when the war ended and the controls were repealed.

Zusha Elinson reports for the WSJ:

SAN FRANCISCO--During his campaign, President Donald Trump repeatedly pointed to the wrenching story of Kate Steinle--a young woman allegedly murdered by an undocumented Mexican--as a prime example of violent crimes committed by illegal immigrants.

Now, the man accused of killing Ms. Steinle, Juan Francisco Lopez-Sanchez, will soon be on trial, refocusing attention on an issue that Mr. Trump has continued to emphasize as president.
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The defendant, a repeat felon who was deported five times, has pleaded not guilty to a second-degree murder of Ms. Steinle, 32, while she walked on pier with her father on July 1, 2015. The single bullet that killed Ms. Steinle ricocheted off the ground before hitting her, ballistics experts have testified.
Elinson goes on to note the irrelevant statistic, furnished by a criminology professor, that immigration in general does not increase crime rates.  That has nothing to do with anything at issue.  The defendant in this case is not just an immigrant.  He is a habitual criminal who has been repeatedly deported and just waltzed back over our porous border.  We need to have enough control over our border that alien criminals who are deported stay deported.  Those who oppose having that degree of control have the blood of the victims on their hands.
Two months ago, I noted that Attorney General Sessions had formally clarified the scope of the defunding provision of President Trump's Executive Order 13768 on so-called sanctuary cities and federal grants. See also this post from April on the misguided injunction against that provision.

After the AG's clarification, the Government moved for reconsideration.  Today, to the surprise of no one, Judge Orrick denied that motion.

Unlike the travel ban case, this case does not involve a temporary order that is or shortly will be moot.  If the Ninth Circuit does not reverse the injunction, it should go to the Supreme Court.
On June 26, the U.S. Supreme Court granted in part the Government's request to stay the injunctions against enforcement of the travel ban for nationals of six countries.  The court left the injunction in effect for, among others, persons with "a close familial relationship" with a person in the United States.  How close is "close"?  The Supreme Court did not say.

The Government's interpretation was largely along the lines of family relationships that Congress has designated as close enough to file an application for a family-based immigration petition, which seemed sensible to me.  The U.S. District Court did not think so and modified its injunction to include "grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States."  Sounds like something out of Gilbert and Sullivan

The District Court also enjoined application of the Executive Order to two classes of refugees, those who "(i) have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee; or (ii) are in the U.S. Refugee Admissions Program through the Lautenberg Program."

Acting swiftly in response to a petition by the Government, the Court issued this order:

The Government's motion seeking clarification of our order of June 26, 2017, is denied. The District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government's appeal to the Court of Appeals for the Ninth Circuit.

Justice Thomas, Justice Alito, and Justice Gorsuch would have stayed the District Court order in its entirety.
Hmmm.  The District Court's furthest stretch, to refugees who merely have an assurance from an agency but no other contact within the U.S., is stayed, but the rest remains in force.  This is the Supreme Court that our Politically Correct academia keeps telling us is "conservative."

Political Points vs. Public Safety

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The Association for Los Angeles Deputy Sheriffs has this post with the above title.

Efforts by state and local politicians in California to direct local law enforcement to not cooperate with the federal government may score points in the world of politics. In the real world, public safety is going to suffer.
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A more immediate consequence of refusing to cooperate with federal law enforcement may be a decrease in funding, personnel, and equipment provided by federal authorities to local task forces which enforce California state laws. These task forces, including those led by the Sheriff's Department in Los Angeles and others across the state, combat a myriad of state crimes that include human trafficking, gangs, drugs, auto/cargo theft, hate crimes, and environmental crimes. Political decisions to end cooperation with federal authorities on their law enforcement priorities may result in the federal Department of Justice deciding to remove these resources and direct them to states not antagonistic to federal law enforcement. Such a move would diminish public safety in Los Angeles and across California, where local law enforcement is already understaffed and underfunded.

At the end of the day, refusing to cooperate with federal law enforcement may be a winning political strategy; it is not a winning public safety strategy.

Beats Me, Ask SCOTUS

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Yesterday in the Hawaii travel ban case, District Judge Derrick Watson denied the Plaintiffs' Emergency Motion to Clarify Scope of Preliminary Injunction.

Upon careful consideration of the parties' submissions, it is evident that the parties quarrel over the meaning and intent of words and phrases authored not by this Court, but by the Supreme Court in its June 26, 2017 per curiam decision. That is, the parties' disagreements derive neither from this Court's temporary restraining order, this Court's preliminary injunction, nor this Court's amended preliminary injunction, but from the modifications to this Court's injunction ordered by the Supreme Court. Accordingly, the clarification to the modifications that the parties seek should be more appropriately sought in the Supreme Court.
Ariane de Vogue has this article for CNN.  The full text of the order is here.
The House of Representatives today passed Kate's Law, H.R. 3004, toughening penalties against deported aliens who illegally reenter the county.  Text is here.  Section-by-section summary is here.  The vote was mostly on party lines, although 24 Democrats voted yes and 1 Republican voted no.

The House also passed the No Sanctuary for Criminals Act, H.R. 3003, confirming the interpretation of existing law announced during the Obama Administration that cities that illegally forbid their employees to exchange information with immigration authorities are not eligible for Byrne grants, and it expands the ineligibility to "any other grant administered by the Department of Justice or the Department of Homeland Security that is substantially related to law enforcement, terrorism, national security, immigration, or naturalization."  Text is here.  Section-by-section summary is here.  My prior post on the "sanctuary city" case is here.

The bill creates a private right of action for victims of crimes committed by persons released by state and local governments that refuse to honor detainers against those governments.  As to states, that raises an interesting sovereign immunity question.

This bill passed on a more partisan basis, with only 3 Democrats voting yes and 7 Republicans voting no.

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