Recently in Immigration Category

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.
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.

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