Recently in Immigration Category

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.

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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.

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.

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