Thread: The Supreme Court's Immigration Law Showdown The justices will face a number of cha

The Supreme Court's Immigration Law Showdown

The justices will face a number of challenges that have tremendous implications for life in the Trump era.



May 24, 2017

On Monday, the Supreme Court decided one of the remaining important cases of this term—Cooper v. Harris—which struck down as racially discriminatory two of North Carolina’s congressional districts.

Some important criminal procedure cases remain, and one possibly important church and state case, Trinity Lutheran Church v. Comer.

Many of the remaining cases, however, pose questions like “[w]hether the filing of a putative class action serves, under the American Pipe & Construction Co. v. Utah rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members” or “[w]hether a plaintiff's claims arise out of or relate to a defendant's forum activities when there is no causal link between the defendant's forum contacts and the plaintiff's claims.”

On the whole, it’s been a low-key term, with a Court hobbled by a missing justice and political uncertainty.

But history may record this term as a blockbuster in one area that has become eerily relevant to America in 2017: how much due process is owed to immigrants, undocumented aliens, aliens outside the United States—and even naturalized citizens. In this area, no fewer than eight cases remain to be announced. The Court granted review in most of them before the election, when they seemed legally important but not overwhelmingly so. But in the surreal post-election era of Donald Trump—the era of the deportation force, mass immigrant roundups, expanding detention of allegedly unlawful immigrants, and hypertrophy of the Department of Homeland Security’s already overgrown enforcement apparatus--they may, together, become literal matters of life and death. Here’s a rundown.

Sessions v. Morales-Santana challenges a ruling denying citizenship to the foreign-born son of an American citizen. Current immigration law discriminates between citizen fathers and citizen mothers when they have children abroad. Mothers who have lived in the U.S. for a year can pass citizenship to their children; fathers must have lived in the U.S. for ten, including five years before the father is fourteen. This raw sex discrimination is a legacy of the period in which Congress and the courts regarded federal power to confer or withhold citizenship as almost unreviewable. (This case was argued in the November session; Justice Ruth Bader Ginsburg is the sole justice who has not written an opinion from that sitting—possibly a bad sign for the government, which is defending the law.)

Sessions v. Dimaya concerns an immigration statute that makes an alien deportable if he or she has committed an “aggravated felony,” a category that includes “a crime of violence,” but provides no definition. The alien in the case committed two burglaries (there was no actual violence), but an immigration judge ruled that the “violence” provision applied to burglary. The Ninth Circuit reversed, holding that the term is “impermissibly vague.” Vagueness is a big no-no in criminal statutes, as the Supreme Court had reaffor,ed in a non-immigration case in 2015. The government argues that criminal law doctrines apply with lesser force in deportation cases, where the “Executive Branch has long been given broad authority.”

Esquivel-Quintana v. Sessions also tests the “aggravated felony” statute. The question is whether an alien who commits a crime in one state—in which the federal courts have held that crime not to be an “aggravated felony”—can be deported for moving to another state—one in which the “crime” is in fact not a crime at all, but a different federal circuit has held that if it were a crime it would be an “aggravated felony.” The alien (a lawful permanent resident) had sex with his 16-year-old girlfriend while he was 20 and 21. Under California law (but in few other states), that is felony “unlawful sexual intercourse.” The Ninth Circuit held that this crime is not an “aggravated felony” for deportation purposes. The alien, later moved to Michigan—where his act would have been completely lawful. Under Sixth Circuit precedent, however, the California “crime” is an “aggravated felony.” Immigration authorities want to send him to Mexico, a country he left when he was 12. This case asks whether such a bootstrap can really subject him to deportation.

In Lee v. United States, a lawful resident pleaded guilty to possession of ecstasy—forgoing trial because his lawyer advised him he would not be deported if he did. In fact, he was subject to immediate deportation to Korea, leaving his wife and six children behind in Tennessee. He seeks to vacate his plea, arguing that he would have chosen a U.S. prison sentence had he known he would be deported—because it would have given him additional years near his family. Thus, he says, he did not have “effective assistance” from his lawyer. The government argues that risking almost certain prison time would be “irrational,” meaning the lawyer’s advice was by definition “effective assistance.”

Those are the warm-up acts. Here are the big boys:

In Maslenjak v. United States, a lower court held that a naturalized citizen could be stripped of her citizenship years later for lying on her application form—even if the lie was “immaterial” to the application. Asked at argument whether that meant, for example, not disclosing having once exceeded the speed limit, the government’s lawyer cheerfully said it would.

Jennings v. Rodriguez tests whether aliens awaiting deportation can be held indefinitely without a hearing. Many of those being held, even though undocumented, may be eligible for statutory reasons to stay; and they aren’t being held on criminal charges. Nonetheless, the government argues that immigration statutes permit them to be held, possibly for years without bail, while the matter is resolved. The Ninth Circuit and the Second Circuit have both said that, under the Constitution, bond hearings are a requirement.

Hernandez v. Mesa is a federal lawsuit against a Border Patrol officer who, annoyed Mexican teenagers on the other side of the border, pulled out his pistol and killed one of them. The officer was in the U.S. and the boy was in Mexico. The government argues that constitutional protections against unlawful killing by law enforcement simply do not apply to aliens not on American soil—no matter how close they may be to the border.

Finally, Ziglar v. Abbasi is a lawsuit against top officials of the Bush-era Justice Department, who ordered a group of immigrants arrested and jailed in the wake of the September 11th attacks. They weren’t charged with crimes, and was no evidence of any connection to terrorism. Nonetheless, Attorney General John Ashcroft, Federal Bureau of Investigation Director Robert Mueller, and other top officials ordered a policy of “hold until cleared”—which is a direct violation of the Fourth Amendment. The officials also specifically ordered that these prisoners, not charged with crime, be held under conditions so brutal that one of them had a nervous breakdown. Now the ex-prisoners are seeking damages in federal court not just against the jailers who made their lives hell, but against the high officials who ordered them to.

In all the major cases, the justices seemed to lean toward the government. No surprise there. The words “immigration” and “national security” exercise huge power over many judges’ imaginations.

But they might consider what’s happening in the country. The Border Patrol—already larger than the FBI, twice as big as the LAPD—has been instructed to hire 5,000 more sworn officers. Immigration and Customs Enforcement is contracting with local jails and private prison companies for more cells—and has announced it will no longer enforce its regulations on humane conditions of confinement. ICE agents are haunting courthouses and hospitals searching for non-criminal aliens to ship off to detention. Attorney General Jeff Sessions is ordering U.S. attorneys to expand prosecution of aliens who have entered unlawfully, even if they have not committed any other crime.

Step back from the details, and a winning streak for the government will paint a very ugly picture. Can citizenship be revoked any time the government decides a citizen has left parking tickets off a form? Can a lawful immigrant be deported for a “crime” that isn’t a crime, because the rules of criminal law don’t apply to them? Can aliens can be held indefinitely, without bail or a right to counsel—and held, if high officials so choose, under conditions so harsh that they violate the Eighth Amendment?

Do we really want to declare the border a law-free zone, where teenagers can be shot down at an agent’s whim?

https://www.theatlantic.com/politics...owdown/527868/

Ginsburg cites own work in striking down citizenship law that treats mothers and fathers differently



June 12, 2017

Justice Ruth Bader Ginsburg relied in part on gender equality cases she brought as a pioneering civil rights lawyer as the Supreme Court on Monday struck down a law that treats unwed mothers and fathers differently when granting citizenship to their children born abroad.

The law imposed different standards for acquiring citizenship for the offspring of an unwed U.S. citizen who has a child with a citizen of another nation. Fathers had to meet a longer requirement of physical presence in the United States than did mothers.

Ginsburg, writing for five other justices, said the different requirements “date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are.”

That unwed mothers had to meet a lesser requirement than married couples or unwed fathers, Ginsburg added, reflected that decades ago, “two once habitual, but now untenable, assumptions pervaded our Nation’s citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child.”

But the court said the remedy was not to make it easier on children of unwed fathers, but harder on children of unwed mothers.

In the decision, Ginsburg cited a long list of cases she had a hand in — either as a lawyer arguing before the court or as a justice — striking down laws that treated men and women differently in, for instance, receiving Social Security survivor benefits or being admitted to the Virginia Military Institute.

“Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an ‘exceedingly persuasive justification,’ ” Ginsburg wrote, quoting her own opinion in U.S. v. Virginia.

She dismissed the government’s argument that the different treatment was logical because only the mother is the legally recognized parent at birth and that the government was trying to avoid situations in which a child would be born “stateless.”

The case at the court involved Luis Ramon Morales-Santana, who was brought to Puerto Rico at age 13 after being born in the Dominican Republic to an unwed U.S. citizen father and a Dominican mother (they later married). By 1976, he was living in New York.

In 2000, when the government tried to deport him after convictions for robbery and attempted murder in 1995, Morales-Santana claimed he should be considered a citizen.

Under the law, a child born outside the United States to an unwed citizen father and a noncitizen mother can become a U.S. citizen if the father lived in the United States for five years, with at least two of those years coming after the age of 14. But Morales-Santana’s father missed that requirement by just a few weeks.

The requirement for an unwed American mother is that she must have lived in the United States continuously for one year before giving birth.

A federal appeals court ruled for Morales-Santana, saying the same rules must apply to both unwed fathers and mothers, and Morales-Santana met the more lenient one-year rule.
Ginsburg said the U.S. Court of Appeals for the 2nd Circuit was only half-right.

The discriminatory rules must fall, she said. But the prospective remedy is that children of unwed mothers have to meet the tougher standard, not that the children of unwed fathers get the more lenient one, she said.

That means Morales-Santana won the battle but lost the war and still will not get his citizenship.

“Going forward, Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender,” Ginsburg wrote.

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Ginsburg’s opinion. Justice Neil M. Gorsuch was not on the court when the case was argued, and took no part in the decision.

Justices Clarence Thomas and Samuel A. Alito Jr. did not join Ginsburg’s reasoning and agreed only in overturning the 2nd Circuit’s relief to Morales-Santana.

The case is Sessions v. Morales-Santana.

https://www.washingtonpost.com/polit...=.38552e354441

High court ruling on birthright citizenship is a victory for gender equity



June 13, 2017

On Monday, the Supreme Court struck down a law that makes birthright citizenship more difficult to secure for a child born overseas out-of-wedlock if only the father, not the mother, is an American. The decision, in Sessions v. Morales-Santana, is both a victory for gender equity and a moment that reinforces Justice Ruth Bader Ginsburg’s legacy as the most influential women’s rights lawyer of the past half-century. In fact, she proved to be so influential that none of the other justices challenged her conclusion that the sex-based classifications at issue in the case violated the Equal Protection Clause. In a 6-2 decision, Justice Anthony Kennedy and Chief Justice John Roberts joined the Ginsburg opinion. Justices Clarence Thomas and Samuel Alito dissented on other grounds, but did not discount her analysis.

The case involved one of the few remaining sex-based classifications in federal law. Luis Ramón Morales-Santana was born in the Dominican Republic in 1962 to an unmarried couple, a US citizen father and a mother who was a citizen of the Dominican Republic. The US Code has long imposed sex-based physical presence requirements on out-of-wedlock citizen parents seeking citizenship for their children born abroad. Under the challenged law, citizen fathers were required to have 10 years’ physical presence in the United States, at least five of which occurred after the father’s 14th birthday. Out-of-wedlock citizen mothers, in contrast, were required to live in the United States for only one year prior to the child’s birth. Morales-Santana’s US father fell just 10 days short of his 10-year cutoff, but he would have easily satisfied the test applied to mothers. Morales-Santana filed suit seeking to strike down the discriminatory provisions and apply the lower, one-year standard to his case.

Ginsburg’s opinion for the Court surveys a series of cases in which she was involved as an attorney for the ACLU Women’s Rights Project, which she founded in the 1970s. In those cases, attorney Ginsburg carefully laid out the basis for heightened scrutiny of sex-based classifications. By 1974, she and her colleagues had achieved recognition of sex discrimination as a suspect classification under the Constitution’s Equal Protection Clause, subject to intermediate scrutiny. She spent the next decade litigating to enforce that understanding, with a series of cases successfully challenging sex-based benefit programs including Social Security and unemployment benefits.

By 1996, now as a member of the Supreme Court, Ginsburg was able to apply these cases from her new vantage, writing a powerful opinion striking down sex-based admissions policies of the Virginia Military Institute. The Morales-Santana decision striking down sex-based citizenship laws builds on this legacy, more than forty years in the making.
Yet the Morales-Santana opinion also makes clear that sex equality will not always result in expanded rights for women. In her 1970s litigation, Ginsburg was known for representing men who sought access to family supports available to women. Equalizing these benefits expanded the pie rather than undermining women’s access to them.

In Morales-Santana, however, Ginsburg’s opinion stops short of giving the relief that Morales-Santana needed in order to attain citizenship. Instead of expanding access to citizenship by adopting the one-year standard for all, the opinion extends the ten-year physical presence to mothers as well as fathers. Women and men are equal, certainly, but unless and until Congress acts, women seeking citizenship for their foreign-born, out-of-wedlock children will be in a significantly worse position than they were previously.

Ginsburg’s pursuit of formal equality for women and men has made a tremendous difference to women for decades. The Morales-Santana decision is a reminder — a hard one for Morales-Santana — that equality can be bitter as well as sweet.

Martha Davis is professor of law at Northeastern University School of Law and previously served as vice president and legal director for the NOW Legal Defense and Education Fund

https://www.bostonglobe.com/opinion/...HCP/story.html

Shows what our courts are spending our time & money for - illegal alien problems & citizenship stealers