The Federalist Society's National Lawyers Convention runs from today through Saturday. Many of the events are being live streamed. The panel sponsored by the Criminal Law Practice Group (of which I am an executive committee member and former chairman) is The Wisdom and Legality of Sanctuary Cities, today from 3:30-5:00 p.m. EST, 12:30-2:00 PST.
Recently in Immigration Category
Justin Sayers has this article with the above headline in the Arizona Daily Star, the local paper.
Tucson voters overwhelmingly opted against the "sanctuary city" initiative, which would have limited the circumstances in which police officers could ask about immigration status.
The city clerk's unofficial results with all precincts reporting are, as of election night:
Yes: 23,562 28.60%
No: 58,820 71.40%
Continue reading Tucson voters overwhelmingly strike down 'sanctuary city' proposal.
A Ninth Circuit panel today decided City of Los Angeles v. Barr, No. 18-56292, holding that the statute authorizing the federal Byrne Justice Assistance Grants did not empower DOJ to condition the grants on local law enforcement giving DHS notice that a detained alien would be released or giving DHS agents access to detained aliens. This is statutory interpretation, not constitutional law.
We conclude that the 2006 amendment to § 10102(a)(6) confirms that the Attorney General and the Assistant AG through delegation have the authority to impose special conditions on all grants and determine priority purposes for formula grants, as those terms are properly circumscribed. The notice and access conditions are not special conditions placed on grants to grantees that exhibit certain risk factors or have idiosyncratic issues that must be addressed individually. Nor are they among the statutorily recognized purposes of a Byrne JAG award as set out in § 10152(a). Therefore, DOJ lacked statutory authority to impose them under §10102(a)(6).
The panel divided 2-1 over how much authority the statute actually does give DOJ, however.
Continue reading Alien Release Notice, Access, and Byrne Grants.
In a recent post, we reported on a new guidance by the New York Commission on Human Rights that declared that use of the term "illegal alien" was a form of harassment and that offenders could be fined $250,000. Former civil rights attorney Hans Bader noted that this is a clear violation of the First Amendment, and that the term is commonly used in both federal statutes and Supreme Court decisions. In a story in the Chicago Tribune reporter Cindy Dampier went to an "expert," Professor Claire Thomas, director of the Asylum Clinic at New York Law School, to correct this fallacy, "....it's commonplace knowledge
that the term 'illegal alien' is pejorative," she says, "and that a
person who wants to spread hate in this city of immigrants will face
consequences." The "expert" also pointed out
another common misconception: That the term supposedly is not used in statutes and in
legal circles. "The term illegal alien isn't a term that comes up in our
laws," she says, noting that it does appear very rarely in pieces of
federal legislation. "However, the term 'alien' is in our statutes, and
you will hear people referred to as 'the alien,' when you are
representing them." Apparently, Professor Thomas' expertise does not include an understanding of Title 8 of the United States Code at 8
USC 1365 and 8 USC 1611. "Illegal alien" is also found in other statutes, like 6 USC
240, 13 USC 141, and 18 USC App. 1201 to 1203. That's at least 5 federal statutes, not to mention state laws as well. She also must have missed its use in Supreme
Court rulings, such as Arizona v. United States (2012).
Update: In response to being called out for misleading the public in its story about the use of the term illegal alien, the Chicago Tribune prominently reposted the story as reported here.
The U.S. Supreme Court opens its new term on Monday. This morning it released a short list of five cases in which it granted review. That list can be found here. Of the five cases, only one is criminal.
In United States v. Sineneng-Smith, No.19-67, the justices agreed to review a Ninth Circuit decision that struck down as unconstitutional a federal law (8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i)) that makes it a crime to encourage or induce illegal immigration for financial gain.
On Monday the Court will release a much longer list of cases it reviewed at the long conference that was held earlier this week.
The U.S. Supreme Court announced its December oral argument calendar Friday. Several criminal and related cases are on the docket.
NY State Rifle & Pistol v. City of New York, No. 18-280 leads off on Monday, December 2, and will get the most press if it is not canceled. Subsequent changes in state and local law gun control laws provide substantial grounds to believe the case is moot.
McKinney v. Arizona, No. 18-1109 closes out the session on Wednesday, December 11. The case involves the Arizona practice of the Supreme Court reweighing the aggravating and mitigating circumstances itself rather than sending the case back to the trial court for a new sentencing hearing. Current Arizona law for new trials requires the jury to do the weighing as well as find the aggravating circumstance that makes the case eligible for the death penalty. The murderer and his friends have filed copious briefing to the effect that the state court must apply current law with only scant attention to whether current federal law (the only law SCOTUS has jurisdiction to review) requires the jury to do the weighing at all. In Ring v. Arizona, 536 U.S. 584, 597-598, n. 4 (2002), the question decided was unambiguously limited to the finding of the aggravating circumstance, not the weighing.
Continue reading SCOTUS December Arguments.
Nationwide injunctions against government action, once unusual, have become common in recent years, and they are increasingly controversial. Several other rules combine with nationwide injunctions to make them particularly noxious. First, the rules on venue in suits against the government are quite lax. One can file a suit nearly anywhere. Second, broad "related case" rules sometimes allow evasion of the requirement for random assignment of judges, sometimes allowing plaintiffs to steer a suit to a particular judge, not just a particular court. Third, there is the "heads I win, tails we take it over" effect. If 99 district courts deny preliminary injunctions and 1 grants a nationwide injunction, the 1 has effectively overruled the 99. With all this, plaintiffs can gain a temporary nationwide victory even if their legal position is well outside the mainstream. Given how long litigation takes, a "preliminary" injunction may be the whole ball game in reality. As John Maynard Keynes famously said, "In the long run we are all dead."
In a suit against an immigration regulation on asylum eligibility and procedure, a divided panel of the Ninth Circuit has denied the government's motion for a stay as it applies to the Ninth Circuit but granted it as to the rest of the country.
Continue reading A Crack in the Nationwide Injunction Edifice.
The U.S. Supreme Court has stayed the order of a federal district court that had enjoined President Trump's use of military funds to construct physical barriers at the border. "Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with Section 8005."
Justices Ginsburg, Sotomayor, and Kagan would have denied the government's application in full, letting the injunction stand in full. Justice Breyer would have stayed the injunction to the extent it prevented finalizing contracts but left the order in place to the extent in enjoined construction. As a practical matter, I think that a request for bids for work that remains enjoined would not get a lot of bidders.
Continue reading SCOTUS Green-Lights Border Wall Construction.
Lew Jan Olowski of the Immigration Reform Law Institute has this op-ed in the WSJ:
Federal law mandates deportation of aliens who are convicted of "aggravated felonies"--defined to include certain state misdemeanors carrying a sentence of a year or longer--whether or not they are in the country legally. But some judges, prosecutors and legislators are playing games to get around this law.
The "games" by judges he refers to are expungement and similar procedures. He is also alarmed that some state legislatures are moving to set the maximum sentence for misdemeanors at 364 days instead of the traditional one year because the federal immigration law's threshold for an "aggravated felony" is, in some parts, exactly one year. He calls on Congress to eliminate the threshold.
Continue reading Deportation, "Aggravated Felonies," and Expungement.
In Sierra Club v. Trump, USCA9 No. 19-16102, the Government has filed an emergency motion for stay of the injunction against the use of transferred DoD funds for building border barriers. Given the relevant time frames, the stay may be the whole ball game. If USCA9 declines, expect a motion to the SCOTUS.
Continue reading Border Wall Injunction Stay Motion.
On May 24, the U.S. Government asked the Supreme Court to review a decision of the Fourth Circuit that the administration's decision to wind down the "Deferred Action for Childhood Arrivals" program was "arbitrary and capricious." In other words, the executive branch had previously decided to stop enforcing the law, and the judiciary enjoined the executive from retracting that decision and resuming enforcement of the law.
Continue reading SCOTUS Won't Hasten DACA Review.
Dick Uliano reports for WTOP in Washington:
Not one, but two different agencies in Maryland released two teenagers from custody despite detainers from the U.S. Immigration and Customs Enforcement.
The two teens -- Josue Rafael Fuentes-Ponce, 16, and Joel Ernesto Escobar, 17 -- are suspects in the MS-13-related killing of 14-year-old Ariana Funes-Diaz, of Anne Arundel County, whose body was found in Prince George's County May 15.
* * *
"The [Prince George's County] Department of Corrections follows the Guidance Memorandum of the Maryland Attorney General to not inform U.S. Immigration and Customs Enforcement (ICE) agency of individuals being released with a detainer, which is a civil matter," said Andrew Cephas, spokesman for the Prince George's County Department of Corrections, in an email.
Continue reading Sanctuary for MS-13 Suspected Murderers.
The Ninth Circuit held today in Prado v. Barr, No. 17-72914:
Claudia Prado ("Prado") seeks review of the Board of Immigration Appeals' conclusion that her California felony conviction for possession of marijuana was an "aggravated felony" and an offense "relating to a controlled substance" that rendered her removable. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i). Prado claims this conviction is no longer a predicate to removal because it was recalled and reclassified as a misdemeanor under California's Proposition 64. Because valid state convictions retain their immigration consequences even when modified or expunged for reasons of state public policy, we deny her petition.
Continue reading Deportation, "Aggravated Felonies," and Retroactivity.
The U.S. Court of Appeals for the Ninth Circuit today announced its decision in United States v. California, No. 18-16496. The federal government sued California over a package of bills designed to hamper efforts to enforce federal immigration laws. CJLF supported a portion of the argument, and the United States prevailed in the district court as to that part. See this post last July. California did not appeal that portion.
The district court ruled in favor of California on the remainder, and the United States appealed. The court of appeals reversed as to one portion. AB 103 provides for inspection of state, local, and private facilities used to house immigration detainees (i.e., all except the federal government's own facilities). Inspecting for health and safety on the same basis as other detention facilities is okay, but requirements that apply only to federal operations and authorize looking into "due process" and "the circumstances around their apprehension" crosses the line on intergovernmental immunity. The panel relies on a Supreme Court decision two months ago, Dawson v. Steager, for the proposition that there is no de minimis exception to the anti-discrimination aspect of the intergovernmental immunity doctrine.
Continue reading USCA9 Mostly Affirms in US v. Cal. "Sanctuary" Case.
The WSJ has this editorial:
Frustrated with Congress and the courts on border security, President Trump has responded by firing his own immigration-enforcement deputies. This political incoherence won't produce better results at the border or break the stalemate in Congress over immigration.
Continue reading Incoherent on Immigration.
