Constitutional Law Prof Blog

SCOTUS Holds Administration DACA Rescission Violated the APA

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Department of Homeland Security v. Regents of the University of California (consolidated with Trump v. NAACP, and McAleenan v. Vidal), the Court held that the Trump Administration's rescission of the DACA program forestalling deportation proceedings against undocumented persons who have resided in the United States since childhood was arbitrary and capricious under the Administrative Procedure Act (APA).  To reach that conclusion, the Court first found that the rescission decision was reviewable.

As we noted in our discussion of the oral argument (which occurred more than six months ago), the focus on the APA is not surprising although there were constitutional issues.  And as foreshadowed in the oral argument, the question of whether the Trump Administration memos adequately considered the issue of reliance on the DACA policy was central to the Court's opinion. 

The opinion by Chief Justice Roberts was joined by Justices Ginsburg, Breyer, and Kagan in full, and joined by Justice Sotomayor except to Part IV regarding the Equal Protection claim (applicable to the federal government through the Fifth Amendment). On the Equal Protection claim, Roberts, writing for a plurality, reasoned:

To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.”  Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.

None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program.Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.

Second, there is nothing irregular about the history leading up to the September 2017 rescission. . . .

Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General.. . .Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of the decision at issue.

[some citations omitted].

 Justice Sotomayor disagreed.  In her concurring opinion she stressed that the equal protection challenges were still in a "preliminary posture," so that all that was necessary at this stage of the litigation was  a statement of  sufficient facts that would allow a court to draw the reasonable inference that there is liability for the misconduct alleged. For Sotomayor, this threshold was met and her opinion criticizes the plurality for  "discounting some allegations altogether and by narrowly viewing the rest." Instead, Sotomayor argues that Trump's statements matter, as she did in her dissenting opinion in Trump v. Hawai'i  (2018) (the "travel ban" case). Further, she contends that the

the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail. At the motion-to-dismiss stage, I would not so readily dismiss the allegation that an executive decision disproportionately harms the same racial group that the President branded as less desirable mere months earlier.

Moreover,

Finally, the plurality finds nothing untoward in the “specific sequence of events leading up to the challenged decision.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (1977). I disagree. As late as June 2017, DHS insisted it remained committed to DACA, even while rescinding a related program, the Deferred Action for Parents of Americans and Lawful Permanent Residents.  But a mere three months later, DHS terminated DACA without, as the plurality acknowledges, considering important aspects of the termination. The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision . . . made and the rationale . . . provided.” Department of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 26). Only by bypassing context does the plurality conclude otherwise.

The otherwise dissenting opinions concurred with the plurality on rejection of the equal protection claims.

Thus, with the nonconstitutional grounds for judgment, it is possible that the Trump Administration could attempt to rescind DACA by complying with the administrative requirements of the APA and not acting in an arbitrary and capricious manner. Whether or not the Trump Administration proceeds in that direction is uncertain.

 

Federal District Judge Issues Preliminary Injunction to Restore Press Pass

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a well-considered opinion in Karem v. Trump, United States District Judge for the District of Columbia, Rudolph Contreras, issued a preliminary injunction requiring the defendants President Trump and White House Press Secretary Stephanie Grisham to restore the "hard pass" press credential to plaintiff Brian Karem.

As Judge Contreras explained, the "hard pass" is a long term press pass that the White House has made available for "decades and across many presidential administrations" to "any Washington-based journalist who regularly covers the President and can clear a Secret Service background check." In 1977, the DC Circuit Court of Appeals held that reporters have a First Amendment liberty interest in possessing a long-term so-called “hard pass”—an interest that, under the Fifth Amendment, may not be deprived without due process, Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977).

The defendants admitted that the revocation of Karem's hard pass was punitive. The revocation of Karem's hard pass came three weeks after an incident in the Rose Garden which Judge Contreras describes in detail, noting that the incident was captured on video and shared widely on the internet.

 

Judge Contreras noted repeatedly that the court did not reach Karem's First Amendment challenge, but resolved the issue on Fifth Amendment Due Process Clause grounds. One aspect of the due process challenge was procedural due process, as in Sherrill v. Knight, which the court found applicable despite the defendants' argument that Sherrill should be limited to its precise facts, situations in which the Secret Service denied a hard pass application for security reasons. Another aspect of the due process challenge was vagueness, which surfaces in Sherrill but is more directly addressed by the United States Supreme Court's opinion in FCC v. Fox (2012), in which the Court found that the FCC fleeting expletives and nudity regulations were unconstitutional.

Here, Judge Contreras found that the White House guidelines were not constitutionally adequate, even when considering the so-called "Acosta Letter" issued by the White House to the press corps in November 2018, although Grisham did not reference or seemingly rely on that letter when issuing her revocation of Karem's hard pass. 

On the balance of equities and public interest regarding the preliminary injunction, Judge Contreras noted the three week lag from the event to the discipline and also stated:

The Court understands the White House’s desire to maintain a degree of control over access and decorum, and at first glance, some might think the temporary suspension of a single reporter’s press pass to be a relatively modest exercise of such control. But as Sherrill makes clear, the conferral of White House hard passes is no mere triviality. And the need for regulatory guidance is at its highest where constitutional rights are implicated.

The White House could react by appealing to the DC Circuit — or by attempting to issue regulatory guidance that might or might not apply to Karem's actions.

 

SCOTUS Expands Takings Clause Challenges in Closely Divided Opinion

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Knick v. Township of Scott, Pennsylvania, a closely divided United States Supreme Court held that a person alleging that their property has been taken by state or local governments may sue in federal court without seeking compensation from state courts, overruling Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City (1985).

The case was reargued in February 2019 after Justice Kavanaugh joined the Court and his vote made a difference: the majority opinion by Chief Justice Roberts is joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.  Justice Kagan wrote the dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor.

The facts involve a regulatory taking challenge by the owner of land in rural Pennsylvania which includes a "family cemetery" in the Township of Scott, which had passed an ordinance requiring cemeteries be kept open to the public in daylight hours.  The land owner Rose Mary Knick challenged the ordinance as a taking in state court seeking only declarative and injunctive relief, but not "just compensation."  She thereafter went to federal court, which dismissed her action under the doctrine of Williamson County, which required seeking "inverse condemnation" (and thus "just compensation") in state court, and the Third Circuit affirmed.

Writing for the five Justice majority, Chief Justice Roberts holds that the Fifth Amendment's Taking Clause is violated when the taking occurs and the property owner must be able to bring an action in federal court at that time. The effective establishment of an "exhaustion requirement" in Williamson County  relegates the Takings Clause to a "poor relation" among the Bill of Rights protections, which the majority finds must be remedied by eliminating the requirement to go to state court and therefore "restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among other protections in the Bill of Rights."  Chief Justice Roberts's majority opinion explains the bad precedent of Williamson County as resulting from the particular procedural facts under which the "Court may not have adequately tested the logic" of the state-litigation requirement and did not anticipate the "preclusion trap" which later resulted (in which the state court findings would be given preclusive effect by the federal court).  The Court's opinion concludes that Williamson County should be overruled despite stare decisis given these "shaky foundations," adding that the state-litigation requirement has been subject to criticism and has "proved to be unworkable in practice."

Writing the dissenting opinion for four Justices, Justice Kagan argues that it is not simply Williamson County that is being overruled, but rejects longstanding understandings of the Takings Clause. For the dissenters, the text of the Takings Clause is vital: the Clause states that private property shall not be taken for public use without just compensation. Thus, unlike other constitutional rights which the majority also discusses, Kagan argues that a Takings Clause violation has two necessary elements: "First, the government must take the property. Second, it must deny the property owner just compensation." The failure of the majority to recognize the distinctive aspects of the Takings Clause is is the basis of two of Kagan's four critiques of the Court's opinion. The third critique is based on the Court's reinterpretation of precedent, including under the Williamson County rule, which Justice Kagan states is "with a theory so, well, inventive that it appears in neither the petitioner’s nor her 15-plus amici’s briefs." This is an interesting nod to the amicus briefs filed on behalf of Knick which include briefs from Washington Legal Foundation and Congressman Steve King. Lastly, under the federal Tucker Act, involving claims against the federal government seeking just compensation for a taking. 

Perhaps most importantly, Justice Kagan's dissent argues that the consequence of the majority's decision will be to "channel a mass of quintessentially local cases involving complex state-law issues into federal courts." Kagan's opinion highlights the regulatory takings problems (as opposed to the less complex actual taking of property):

This case highlights the difficulty. The ultimate constitutional question here is: Did Scott Township’s cemetery ordinance “go[ ] too far” (in Justice Holmes’s phrase), so as to effect a taking of Rose Mary Knick’s property? Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). But to answer that question, it is first necessary to address an issue about background state law. In the Township’s view, the ordinance did little more than codify Pennsylvania common law, which (the Township says) has long required property owners to make land containing human remains open to the public. See Brief for Respondents 48; Brief for Cemetery Law Scholars as Amici Curiae 6–26. If the Township is right on that state-law question, Knick’s constitutional claim will fail: The ordinance, on that ac- count, didn’t go far at all. But Knick contends that no common law rule of that kind exists in Pennsylvania. See Reply Brief 22. And if she is right, her takings claim may yet have legs. But is she? Or is the Township? I confess: I don’t know. Nor, I would venture, do my colleagues on the federal bench. But under today’s decision, it will be the Federal District Court for the Middle District of Pennsylvania that will have to resolve this question of local cemetery law.

Justice Kagan also points out that this is the second time in a month that a five member majority [and indeed, the same five member majority] of the Court has overruled "longstanding precedent," quoting from Justice Breyer's dissent in Franchise Tax Bd. of California v. Hyatt.  She writes that "the entire idea of stare decisis is that judges do not get to reverse a decision simply because they never liked it in the first place."

[image via]

 

 

D.C. Circuit Finds Federal Policy Barring Abortion for Unaccompanied Immigrant Minors Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Jane Doe v. Azar, the United States Court of Appeals for the District of Columbia Circuit affirmed the trial court's injunction against the federal government's 2017 policy banning abortion access for any unaccompanied immigrant minor in federal custody.  As the per curiam opinion for the majority explained:

The claim of one minor in this case brings the policy’s breadth and operation into stark relief. She had been raped in her country of origin. After her arrival here and her placement in government custody, she learned she was pregnant as a result of the rape. She repeatedly asked to obtain a pre-viability abortion, to no avail. She remained in government custody as an unaccompanied minor because there was no suitable sponsor to whom she could be released. Nor was there any viable prospect of her returning to her country of origin: indeed, she eventually received a grant of asylum (and lawful status here) due to her well-founded fear of persecution in her country of origin. Still, the government sought to compel this minor to carry her rape-induced pregnancy to term.

She is one of the named plaintiffs who brought this challenge to the government’s policy on behalf of a class of pregnant unaccompanied minors. The district court granted a preliminary injunction in favor of the plaintiffs, and the government now appeals. We initially agree with the district court that the case is not moot, and we find no abuse of discretion in the court’s certification of a plaintiffs’ class consisting of pregnant unaccompanied minors in the government’s custody. On the merits, we sustain the district court’s preliminary injunction in principal part.

The bulk of the per curiam majority's opinion is devoted to the class action certification and mootness issues. The government contended that because the named representatives had obtained abortions, their claims were moot, and rendered them inadequate class representatives (both because of the mootness and because not all pregnant minors would choose abortions). The government further contended that other requirements for class certification were not met and that the class should be narrowed so that joinder of individual plaintiffs seeking an abortion would be possible. The majority found the district court did not abuse its discretion in certifying the class.

On the merits of the constitutional claim, the majority stated it was clear that there is a constitutional right to access abortion adjudicated under the undue burden standard and that it extends to minors, although there can be a parental consent requirement if there is a judicial bypass provision. The federal government agreed that a state could not simply ban a minor's access to abortion, but how then, the opinion asked, can the federal government defend the abortion ban policy of the ORR, the Office of Refugee Resettlement, a program in the Department of Health and Human Services, bears responsibility for the “care and placement” of unaccompanied immigrant minors (known as UACs, "Unaccompanied Alien Children")? The government offered three arguments, each of the which the majority rejected.

    *    "First, the government contends that permitting unaccompanied minors in its custody to access pre-viability abortions requires it to “facilitate” abortions, which the government says it is not obligated to do." The court, however, noted that the problem was not the government not wanting to remove barriers not of its own creation (such as poverty), but here the government creates the conditions itself: "an unaccompanied minor’s abortion hinges on ORR’s drafting and executing approval documents only because ORR itself has conditioned abortion access on its execution of approval documents." Further, the court ruled that what the government deems the “facilitation” that it wants to steer clear of giving to an unaccompanied minor, "is something it willingly gives to all others in federal custody."

    *    Second, the government asserts that unaccompanied minors may voluntarily depart the country and that the ban thus does not impose any cognizable burden. But, the court noted that"voluntary departure" is not freely available, but is at government discretion, and actually operates as a "second government veto." Moreover, even if the government were to grant a voluntary departure upon request, there is no indication of how long that process might take, and requires the minor to abandon all other requests for relief.

    *     Third, the government argues that, because many unaccompanied minors are released to sponsors, banning abortions while in ORR custody does not impose an undue burden. The court found that the sponsorship argument was "ultimately no more persuasive than its voluntary-departure one. Those arguments share important parallels. In both, the central idea is that an unaccompanied minor may find herself no longer in ORR custody—either because she voluntarily departs the country or because she is released to a sponsor—in which event she would be free to access an abortion without the burden of ORR’s policy."

Thus, the majority found that the ORR policy violated the Fifth Amendment right to due process and affirmed the district court's injunction against its enforcement.

The court remanded another portion of the district court's injunction, however, on the basis that the ORR policies involved were not necessarily clear. At issue were any policies that required disclosure of pregnancy or abortion access.  This issue was at times conflated with the access to abortion issue, and the court remanded so that the district court could "give a more fulsome account of its findings and conclusions in that regard."

In a dissenting opinion, Senior Circuit Judge Laurence Silberman devoted most of his opinion to the class certification issue, but on the merits relied heavily on the dissenting opinion of then-judge and now-Justice Kavanaugh in Garza v. Hargan (2017), concluding that the majority is "endorsing abortion on demand – at least as far as the federal Government is concerned."  Thus, the stage is set for the federal government's petition for certiorari.

 

United States District Judge Finds Exclusion of Puerto Rican Resident from Benefits Violates Equal Protection

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion in United States v. Vaello-Madero, United States District Judge for the District of Puerto Rico, Gustavo Gelpí, entered summary judgment for the defendant in a suit by the United States seeking to recoup SSI disability payments. Mr. Vaello-Madero had been receiving SSI benefits while living in New York and the federal government continued to deposit the monthly payment into his checking account even after he relocated to Puerto Rico.  The SSI statute defines persons eligible for SSI as living in the "United States," and by definition Puerto Rico from the United States, 42 U.S.C. §1382c(e).

Judge Gelpí rejected the government's contention that this exclusion was supported by the Territorial Clause, Article IV §3 cl. 2, which although it gives Congress a "wide latitude of powers" is not a "blank check" to "dictate when and where the Constitution applies to its citizens," citing Boumediene v. Bush (2008).

However, Judge Gelpí credited Vaello-Madero's argument that the exclusion of citizens of Puerto Rico from SSI benefits violated the equal protection component of the Due Process Clause of the Fifth Amendment. Judge Gelpí relied on United States v. Windsor (2013) in which the United States Supreme Court found DOMA unconstitutional, stating that as in Windsor the SSI statute was based on animus. Judge Gelpi gestured toward the possible applicability of a higher level of scrutiny - mentioning that US citizens residing in Puerto Rico are "very essence of a politically powerless group, with no Presidential nor Congressional vote, and with only a non-voting Resident Commissioner representing their interests in Congress" and noting that a "de facto classification based on Hispanic origin is constitutionally impermissible" - but held that, as in Windsor, rational basis was not satisfied.

Importantly, Judge Gelpí found that the government's interests advanced to support the exclusion of Puerto Rico in the statute, cost and nonpayment of federal income tax by Puerto Rican residents, were "belied by the fact that United States citizens in the Commonwealth of the Northern Mariana Islands receive SSI disability benefits."

Judge Gelpí's opinion ends with strong language:

federal legislation that creates a citizenship apartheid based on historical and social ethnicity within United States soil goes against this very concept [of Equal Protection and Due Process].  It is in the Court’s responsibility to protect these rights if the other branches do not. Allowing a United States citizen in Puerto Rico that is poor and disabled to be denied SSI disability payments creates an impermissible second rate citizenship akin to that premised on race and amounts to Congress switching off the Constitution. All United States citizens must trust that their fundamental constitutional rights will be safeguarded everywhere within the Nation, be in a State or Territory.

However, the opinion stops short of declaring 42 U.S.C. §1382c(e) facially unconstitutional and enjoining its enforcement.  Judge Gelpí does issue summary judgment in favor of Vaello-Madero in an opinion sure to be used as precedent in other similar proceedings if the United States does not appeal.

District Judge Finds ICWA Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion in Brackeen v. Zinke, United States District Judge for the Northern District of Texas, Reed O'Connor, entered summary judgment for the plaintiffs and found that portions of the Indian Child Welfare Act, ICWA  are unconstitutional, specifically violating equal protection, the non-delegation doctrine of Article I, and the commandeering principle of the Tenth Amendment.  Passed in 1978, the general purpose of ICWA is to prevent Native children from being removed from their families and tribes based on a finding that "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” as Judge O'Connor's opinion acknowledged, quoting Adoptive Couple v. Baby Girl (2013) (quoting 25 U.S.C. § 1901(4)).

Judge Reed O'Connor, however, accepts an argument that was sidestepped by the United States Supreme Court in Baby Girl: that ICWA violates equal protection (applied to the federal government through the Fifth Amendment) by making a racial classification that does not survive strict scrutiny. Recall that in some briefs as well as in the oral argument, the specter of the racial classification was raised.  In United States District Judge O'Connor's opinion, that specter is fully embodied. Judge O'Connor found that ICWA does make a racial classification, rejecting the government's view that the classification at issue was a political category. Judge O'Connor reasoned that ICWA defines Indian child not only by membership in an Indian child, but extends its coverage to children "simply eligible for membership who have a biological Indian parent." Thus, Judge O'Connor reasoned, ICWA's definition "uses ancestry as a proxy for race" and therefore must be subject to strict scrutiny.  Interestingly, the United States government did not offer any compelling governmental interest or argued that the classification is narrowly tailored to serve that interest. Judge O'Connor nevertheless credited the Tribal Defendants/Intervenors assertion of an interest in maintaining the Indian child's relationship with the tribe, but found that the means chosen was overinclusive, concluding that

The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.

On the non-delegation claim, Judge Reed O'Connor found it fatal that ICWA allows Tribes to change the child placement preferences selected by Congress and which then must be honored by the states in child custody proceedings.

On the Tenth Amendment claim, Judge Reed O'Connor relied on the Court's recent decision in Murphy v. NCAA holding unconstitutional a federal law prohibiting states from allowing sports gambling regarding anti-commandeering, concluding that

Congress violated all three principles [articulated in Murphy] when it enacted the ICWA. First, the ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs by commanding States to impose federal standards in state created causes of action. See 25 U.S.C. § 1915(a). Second, because the ICWA only applies in custody proceedings arising under state law, it appears to the public as if state courts or legislatures are responsible for federally-mandated standards, meaning “responsibility is blurred.” Third, the ICWA shifts “the costs of regulations to the States” by giving the sole power to enforce a federal policy to the States.  Congress is similarly not forced to weigh costs the States incur enforcing the ICWA against the benefits of doing so. In sum, Congress shifts all responsibility to the States, yet “unequivocally dictates” what they must do.

[citations to Murphy omitted].

 

With more abbreviated analysis, Judge Reed O'Connor found that the applicable regulations pursuant to ICWA violated the Administrative Procedure Act and that Congress did not have power to pass ICWA under the Indian Commerce Clause because it was limited by the Tenth Amendment. However, Judge O'Connor rejected the individual prospective plaintiffs' argument that ICWA violated the Due Process Clause's protection of family rights.

 

This opinion finding a long-standing statute unconstitutional is sure to be appealed, especially by the Cherokee Nation and other Tribal Intervenors.

 

District Judge Enjoins Termination of TPS Designations

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion in Ramos v. Nielsen, United States District Judge Edward Chen of the Northern District of California enjoined the federal government's termination of TPS  — Temporary Protected Status — designations for Haiti, Sudan, Nicaragua, and El Salvador.

As we previously discussed related to the NAACP complaint filed in January in Maryland and related only to Haiti, one argument is that the termination is a violation of equal protection, springing from an intent to discriminate on the basis of race and/or ethnicity.

Judge Chen's opinion finds that the preliminary injunction is warranted based on a likelihood of prevailing on the merits of an Administrative Procedure Act claim, but also on the merits of the equal protection claim.  Judge Chen applied the factors from Village of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977), and concluded that there was sufficient evidence to

raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations. In particular, Plaintiffs have provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants.

After reciting specific incidences of animus for several pages, Judge Chen additionally stated that there were departures from the usual procedures which dovetailed with this animus:

there were departures from the normal procedural sequence during the TPS decision-making process; that is, instead of considering all current country conditions as had been done in previous administrations, the DHS political appointees in the current administration made TPS decisions turn on whether the originating condition or conditions directly related thereto continued to exist, disregarding all other current conditions no matter how bad. Moreover, at the apparent behest of then-DHS Secretary Kelly, there was an effort to gather negative information about Haitian TPS beneficiaries prior to the decision on Haiti’s TP designation – in particular, whether Haitian TPS beneficiaries had been convicted of crimes or were on public or private relief. See Degen Decl., Ex. 84 (email). There is no indication that these factors had previously been considered by DHS in making TPS decisions; indeed, the email indicated that the request for the information should be kept quiet. See Degen Decl., Ex. 84 (email) (“Please keep the prep for this briefing limited to those on this email. If you need a specific data set and need to ask someone to pull it, please do not indicate what it is for. I don’t want this to turn into a big thing were people start prodding and things start leaking out.”). The information sought by the Secretary coincides with racial stereotypes – i.e., that non-whites commit crimes and are on the public dole.

[footnote omitted].

This is yet another judicial finding that the administration has acted with racial animus and the administration is sure to appeal it.

[image: Kirstjen Nielsen, current Secretary of Department of Homeland Security]

Federal Judge Orders Return of Mother and Daughter Being Deported

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a terse written Order in Grace v. Sessions, United States District Judge for the District of Columbia, Emmet Sullivan reiterated his oral order  "requiring the Defendants to return “Carmen” and her daughter to the United States FORTHWITH" (emphasis in original).  Judge Sullivan's Order recounted that at the emergency hearing on August 8, "Defendants stated that they would not consent to staying the removal past 11:59 pm Thursday August 9, 2018, but specifically represented to the Court that “Carmen” and her daughter would not be removed prior to that time." The judge therefore set a hearing for 1:00pm on Thursday, during which it was learned that Carmen and her daughter were being removed from the country by plane. The Judge's Order concluded:

it is

HEREBY ORDERED that the Defendants shall return “Carmen” and her daughter to the United States FORTHWITH; and it is

FURTHER ORDERED that in the event that the Defendants do not fully comply with this Order, Defendants Attorney General Jefferson Sessions, III; Secretary of the Department of Homeland Security Kirstjen M. Nielsen; U.S. Citizenship and Immigration Service Director Lee Francis Cissna; and Executive Office of Immigration Review Director James McHenry, preferably accompanied by their attorneys, shall be ORDERED to appear in Court to SHOW CAUSE why they should not be held in CONTEMPT OF COURT; and it is

FURTHER ORDERED that the Defendants shall file a status report on the docket in this case by no later than 5:00 pm August 10, 2018, informing the Court of the Defendants’ compliance with this Order.

SO ORDERED.

[emphasis in original].

The complaint in the case challenges expanded "expedited removal" for asylum seekers whose claims are based on gang violence or domestic violence, with statutory claims for relief augmented by separation of powers arguments and a constitutional claim of violation of due process.

Federal Judge Declines to Dismiss Challenges to Citizenship Question on 2020 Census

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an extensive and scholarly opinion in New York v. United States Department of Commerce consolidated with New York Immigration Coalition v. United States Department of Commerce, federal judge Jesse Furman has denied in part motions to dismiss and allowed the case to proceed.

Recall that the United States Commerce Department's announcement that the 2020 Decennial Census Questionnaire will include a citizenship question, which the census has not included since 1950, has provoked several challenges including the one filed in the Southern District of New York, New York v. United States Department of Commerce, raising constitutional objections on behalf of seventeen state plaintiffs, the District of Columbia, as well as six cities and the United States Conference of Mayors. The first count of the complaint is based on the "actual enumeration" requirement and avers that adding a citizenship question will "deter participation." The allegations in the complaint regarding the link between a citizenship demand and lower participation interestingly rely on the Census Bureau's own arguments and findings. The complaint alleges that consequences of lower participation is "an undercount" that will not reflect the accurate population of the plaintiffs, effecting their representation in the House of Representatives and the Electors.  Two additional counts are based on the Administration Procedure Act. 

The New York Immigration Coalition complaint has "five nongovernmental organizations" as plaintiffs, challenging the Secretary’s decision on the same grounds as the states' complaint but importantly on the additional ground of equal protection.

Judge Furman first found that the "government plaintiffs" and well as the "NGO plaintiffs" had standing and then rejected that the lawsuits were political questions barred from judicial review. As Judge Furman concluded:

the Court rejects Defendants’ attempts to insulate Secretary Ross’s decision to reinstate a question about citizenship on the 2020 census from judicial review. Granted, courts must give proper deference to the Secretary, but that does not mean that they lack authority to entertain claims like those pressed here. To the contrary, courts have a critical role to play in reviewing the conduct of the political branches to ensure that the census is conducted in a manner consistent with the Constitution and applicable law.

However, Judge Furman concluded that the Plaintiffs' claims under the Enumeration Clause must be dismissed. For Judge Furman, the constitutional text's broad language combined with a historical practice that has allowed many demographic questions and once included citizenship questions leads to the result that the Secretary has power to include a citizenship query. But as Judge Furman repeatedly emphasized, this does not end the issue. For example, as Judge Furman wrote:

to say that the Secretary has authority under the Enumeration Clauseto ask about citizenship on the census is not to say that the particular exercise of that authority here was constitutional or lawful. The Secretary cannot exercise his authority in a manner that would violate individual constitutional rights, such as the right to equal protection of the laws. [citations omitted]. Nor, under the APA, may he exercise his authority in a manner that would be “arbitrary” and “capricious.” 5 U.S.C. § 706(2)(A);[citation omitted]. Plaintiffs here make both kinds of claims, and the Court’s holding that the Secretary’s decision was consonant with the Enumeration Clause does not resolve those claims.

In his discussion of the equal protection claim (under the Fifth Amendment's inclusion of equal protection), Judge Furman relegated the animus argument to a footnote stating that it need not be discussed because he found that there was a sufficient claim for a denial of equal protection on the basis of Village of Arlington Heights v. Metro. Hous. Dev. Corp. (1997).  Judge Furman concluded that the allegations of discriminatory effect — that inclusion of the citizenship question for all respondents will bear, in the form of diminished political representation and reduced federal funding, more heavily on “Latinos, Asian-Americans, Arab-Americans, and other immigrant communities of color” because the non-response rate is likely to be higher in such communities — were sufficient.

As to the required intent, Judge Furman listed the Arlington Heights factors:

 (1) “[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes”; (2) “[t]he specific sequence of events leading up the challenged decision”; (3) “[d]epartures from the normal procedural sequence”; (4) “[s]ubstantive departures . . . , particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached”; and (5) “[t]he legislative or administrative history . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.”

and then discussed each one, focusing on departures from normal procedures (which "include overruling career staff who strongly objected to including the citizenship question, failing to extensively test reintroduction of the question, and ignoring the recommendation of the Census Bureau’s advisory committee") and specific statements, including statements of the President. Judge Furman rejected the federal goverment's argument that consideration of such statements was improper after Trump v. Hawaii, writing that the government's invocation of the case "falls somewhere between facile and frivolous," especially given its practice of truncated quotation. Instead, Judge Furman found 

There is nothing in the Court’s opinion [in Trump v. Hawaii] to indicate that its deferential review applies outside of the “national security and foreign affairs context,”  let alone that the Court meant to unsettle decades of equal protection jurisprudence regarding the types of evidence a court may look to in determining a government actor’s intent. In fact, even with its “circumscribed judicial inquiry,” the Hawaii Court itself considered “extrinsic evidence” — namely, President Trump’s own statements.  If anything, therefore, Hawaii cuts against Defendants’ arguments rather than in their favor.

[citations omitted].

Judge Furman thus directed the parties to proceed with discovery, inform the court whether the cases should be consolidated, and whether a trial or summary judgment would be more appropriate.

 

District Judge Enjoins Administration's Child-Parent Separation Policy

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an opinion and order in Ms. L. v. United States Immigration and Enforcement (ICE), United States District Judge Dana Sabraw has found that the current Administration policies regarding separation of parents and children and reunification likely violate due process meriting a preliminary injunction.

Recall that in early June, Judge Sabraw denied a motion to dismiss in the same case finding that that there was sufficient claim of a due process violation, applying the "shocks the conscience" test.

This opinion reasserts that conclusion:

This practice of separating class members from their minor children, and failing to reunify class members with those children, without any showing the parent is unfit or presents a danger to the child is sufficient to find Plaintiffs have a likelihood of success on their due process claim. When combined with the manner in which that practice is being implemented, e.g., the lack of any effective procedures or protocols for notifying the parents about their childrens’ whereabouts or ensuring communication between the parents and children, and the use of the children as tools in the parents’ criminal and immigration proceedings,  a finding of likelihood of success is assured. A practice of this sort implemented in this way is likely to be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,” interferes with rights “‘implicit in the concept of ordered liberty[,]’” Rochin v. Cal., 342 U.S. 165, 169 (1952) (quoting Palko v. State of Conn., 302 U.S. 319, 325 (1937)), and is so “‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency.” Breithaupt v. Abram, 352 U.S. 432, 435 (1957).

Judge Sabraw relied on the fact of separation and the government's failure to have a reunification plan, despite the June 23 Administration "Fact Sheet,"  that addressed not only removal but also"reunification for other purposes, such as immigration or asylum proceedings, which can take months." He stated that there was

no genuine dispute that the Government was not prepared to accommodate the mass influx of separated children. Measures were not in place to provide for communication between governmental agencies responsible for detaining parents and those responsible for housing children, or to provide for ready communication between separated parents and children. There was no reunification plan in place, and families have been separated for months.

Judge Sabraw's opinion clearly rests on the substantive due process claim violated by the governmental family separation policy, but also sounds in procedural due process:

the practice of separating these families was implemented without any effective system or procedure for (1) tracking the children after they were separated from their parents, (2) enabling communication between the parents and their children after separation, and (3) reuniting the parents and children after the parents are returned to immigration custody following completion of their criminal sentence. This is a startling reality. The government readily keeps track of personal property of detainees in criminal and immigration proceedings. Money, important documents, and automobiles, to name a few, are routinely catalogued, stored, tracked and produced upon a detainees’ release, at all levels—state and federal, citizen and alien. Yet, the government has no system in place to keep track of, provide effective communication with, and promptly produce alien children. The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property. Certainly, that cannot satisfy the requirements of due process. See Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (quoting Lassiter v. Dept. of Soc. Services of Durham County, N.C., 452 U.S. 18, (1981)) (stating it is “‘plain beyond the need for multiple citation’ that a natural parent’s ‘desire for and right to the companionship, care, custody, and management of his or her children’ is an interest far more precious than any property right.”) (internal quotation marks omitted).

Judge Sabraw found that the government's procedures which place "the burden on the parents to find and request reunification with their children under the circumstances presented here is backwards," and that under the present circumstances, "the Government has an affirmative obligation to track and promptly reunify these family members."

 

States Sue to Challenge Federal Child-Parent Separation Policy

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a lengthy complaint in Washington v. United States, seventeen states (as well as the District of Columbia) have challenged the "Trump Administration's practice of refusing entry to asylum applicants who present at the Southwestern border ports of entry and its cruel and unlawful policy of forcibly separating families who enter the country along our Southwestern border."

The states — Washington, California, Maryland, Oregon, New Mexico, New Jersey, Iowa, Illinois, Minnesota, Rhode Island, New York, Vermont, North Carolina, and Delaware, and the Commonwealths of Massachusetts, Pennsylvania, and Virginia; and the District of Columbia — argue that the federal policy is unconstitutional as a violation of substantive due process, procedural due process, and equal protection, pursuant to the Fifth Amendment.

The substantive due process claim alleges that state residents who are parents have a liberty interest in the care, custody, and control of their children, and that minors who are residents have a reciprocal liberty interest in being with their parents, as well as a right to be free of unreasonable risk of harm from the government separating them from their parents, detaining them, and housing them in unlicensed facilities.

The procedural due process claim alleges that the federal government has deprived residents and future residents of their liberty with "no hearing whatsoever."

The equal protection claim alleges that the federal government has infringed on a fundamental right and "targets" individuals based on "nationality or ethnicity," and is thus subject to strict scrutiny, or in the alternative, disparately impacts immigrants from Latin America based on animus.

The complaint also has two statutory counts: one under the Administrative Procedure Act and one under the laws regulating asylum.

The allegations in the 128 page complaint also seek to establish standing on behalf of each of the States.

This complaint joins the challenges we previously discussed in M.G.U. v. Kirstjen Nielsen  and a federal judge's June 7 decision in L. v. ICE denying a motion to dismiss a similar complaint.

 

[image via]

 

 

Complaint Challenges Child-Parent Separation Policy and Implementation

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In the complaint in M.G.U. v. Kirstjen Nielsen, three adult plaintiffs challenge the parent-child separation policy implemented by Homeland Security for persons seeking asylum. Recall that in early June, a federal judge ruled in Li v. ICE that the constitutional claims in similar complaint survived a motion to dismiss. The complaint in M.G.U. comes after increased publicity and outcry regarding the practice, with President Trump issuing an Executive Order changing the policy. However, the EO does not mention family reuinification and it is as yet unclear whether that will occur for parents and children who have already been separated (or whether the children will now be treated as "unaccompanied minors.")

The complaint alleges that that the government actors have violated the plaintiffs Fifth Amendment Due Process rights in two ways. First, the complaint alleges that it is a violation of due process to inflict punishment on civil detainees. In this regard, the separation is alleged to be punishment and includes this allegation:

The employees and agents who Defendants deploy to interact with parents and children in immigration detention facilities sadistically tease and taunt parents and children with the prospect of separation, and do so using words and tones indicating that Defendants’ employees and agents enjoy the pain and suffering that the very idea of separation causes to parents and children.

Second, the complaint alleges that the separation violates the due process right of family integrity, similar to the judge's finding in Li v. ICE.

Most likely this is only the beginning of challenges to the parent-child separation practice.

 

 

 

Federal Judge Allows Complaint Against ICE's Parent-Child Separation Policy

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his Order in L. v. United States Immigration and Customs Enforcement (ICE), Southern District of California United States District Judge Dana Sabraw denied the government's motion to dismiss the constitutional claim challenging ICE's separation of plaintiff parents and children at the border.

Judge Sabraw first found that the complaint was not moot because the government defendants "have not shown that Ms. L. was released from detention and reunited with her daughter for reasons other than this litigation," and thus "the voluntary cessation exception applies to this case."

In considering whether the complaint's allegations of a denial of due process under the Fifth Amendment should be dismissed, Judge Sabraw discussed the bedrock principles that the Constitution applies to non-citizens within the United States and that the Due Process Clause includes a "right to family integrity or to familial association." Judge Sabraw distinguished other cases in the immigration context finding that here the plaintiffs were detained with their children:

Here, the Court is faced with Plaintiffs who present different circumstances, but each Plaintiff has demonstrated that the right to family integrity encompasses her particular situation. According to the allegations in the Amended Complaint, Ms. L. did everything right. She and her child presented at the port of entry and requested asylum. She passed a credible fear screening interview, was taken out of expedited removal proceedings, and placed in removal proceedings before an IJ to pursue her asylum claim. Ms. C., by contrast, did not do everything right. She committed a crime by entering the United States illegally, and was prosecuted and imprisoned for her transgression: 25 days in custody for misdemeanor violation of 8 U.S.C. § 1325 (illegal entry). However, having served her sentence, Ms. C. was then returned to ICE detention to pursue her asylum claim, as she too had passed a credible fear screening. Ms. C., therefore, is on equal footing with Ms. L. for purposes of pursuing her due process claim. Ms. L.’s claim is based on the initial separation from her child, while Ms. C.’s claim is based on the continued separation from her child. Both claims focus on government conduct in separating families during removal proceedings.

Judge Sabraw applied the "shocks the conscience" test for due process and elaborated that due process protects against "governmental conduct that violates the “decencies of civilized conduct," interferes with rights “‘implicit in the concept of ordered liberty," and is so “‘brutal’ and ‘offensive’ that it [does] not comport with traditional ideas of fair play and decency"(citing cases).

Judge Sabraw recounted the allegations of trauma for both parents and children, and concluded:

These allegations call sharply into question the separations of Plaintiffs from their minor children. This is especially so because Plaintiffs allegedly came to the United States seeking shelter from persecution in their home countries, and are seeking asylum here. For Plaintiffs, the government actors responsible for the “care and custody” of migrant children have, in fact, become their persecutors. This is even more problematic given Plaintiffs’ allegations and assertions that there is a government practice, and possibly a forthcoming policy, to separate parents from their minor children in an effort to deter others from coming to the United States. This alleged practice is being implemented even when parents like Ms. L. and Ms. C. have passed credible fear interviews, and therefore, are positioned to present asylum claims meriting consideration by an IJ in their removal proceedings. These allegations sufficiently describe government conduct that arbitrarily tears at the sacred bond between parent and child, and is emblematic of the “exercise of power without any reasonable justification in the service of an otherwise legitimate governmental objective[.]” [citation omitted] Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency. At a minimum, the facts alleged are sufficient to show the government conduct at issue “shocks the conscience” and violates Plaintiffs’ constitutional right to family integrity. Accordingly, Defendants’ motion to dismiss Plaintiffs’ due process claim is denied.

Judge Sabraw did dismiss the counts alleging a violation of the Administrative Procedure Act (finding "Plaintiffs have failed to allege facts sufficient to show “final agency action” subject to review under the APA") and a violation of the Asylum Act (finding no authority for a private right of action). 

But the claim for a Due Process Clause violation will proceed as the United States government seems to arguing family separation is a permanent policy.

[image: "Cloak of Conscience" by Anna Chromy, via]

 

Another Federal Judge Enjoins President's DACA Rescission

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a 60 page Memorandum Opinion in NAACP v. Trump, United States District Judge for the District of Columbia, Judge John Bates "vacated" the Department of Homeland Security's decision to rescind the DACA program, but stayed its order of vacatur for 90 days "to afford DHS an opportunity to better explain its view that DACA is unlawful."

Recall that in February Judge Nicholas Garaufis of the Eastern District of New York granted a preliminary injunction against the rescission of DACA and also recall that Judge Alsup of the Northern District of California issued a preliminary injunction in January which the government is appealing.

Judge Bates' decision rests on an application of the Administrative Procedure Act (APA), finding that the decision by DHS to rescind DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood., was "arbitrary and capricious" because the Department failed adequately to explain its conclusion that the program was unlawful.  Judge Bates stated that "neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program."

Judge Bates held that the "litigation risk" argument, which would would render the decision to rescind presumptively  unreviewable, was not independent of the reality that the "rescission was a general enforcement policy predicated on DHS’s legal determination that the program was invalid when it was adopted." This legal determination is what raises the constitutional issue: DHS determined that DACA lacked constitutional authority. Although, as Judge Bates noted, "it seems that no court has yet passed judgment on DACA’s constitutionality."

Thus, Judge Bates gave DHS more time to make it arguments that DACA lacked constitutional (and statutory) authority to support its rescission decision, and also deferred ruling on the plaintiffs' constitutional challenges to the rescission as violating due process and equal protection.

 

SCOTUS Finds INA Deportation Provision for "Crime of Violence" Unconstitutionally Vague

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Sessions v. Dimaya, the United States Supreme Court held that a portion of the definition of "crime of violence" in 18 U.S.C. §1, as applied in the deportation scheme of the Immigration and Nationality Act,  see 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C), is unconstitutionally vague.

The Court's somewhat fractured opinion concluded that the residual clause, §16(b), which defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" is unconstitutionally vague.

Justice Kagan's opinion was joined in its entirety by Justices Ginsburg, Breyer, and Sotomayor. Justice Gorsuch joined only Parts I, III, IV–B, and V, thus making these sections the opinion of the Court.

The Court's opinion relied on Johnson v. United States (2015), authored by Justice Scalia, in which the Court found a similar residual clause in the Armed Career Criminal Act (ACCA), defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B) unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause.

The Court in Dimaya ruled that

§16(b) has the same “[t]wo features” that “conspire[d] to make [ACCA’s residual clause] unconstitutionally vague" {in Johnson}.  It too “requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents” some not-well-specified-yet-sufficiently- large degree of risk. The result is that §16(b) produces, just as ACCA’s residual clause did, “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

The United States and the dissenting opinions attempted to distinguish the INA provision from the ACCA provision in several ways. Kagan, writing for the Court in Part IV that "each turns out to be the proverbial distinction without a difference." 

Given Gorsuch's joining with the perceived more liberal-leaning Justices on the Court, his concurring opinion is sure to attract attention.  Gorsuch's substantial opinion (18 textual pages to Kagan's 25 page opinion for the Court and plurality), leans heavily on the foundations of due process, beginning

Vague laws invite arbitrary power. Before the Revolu­tion, the crime of treason in English law was so capa­ciously construed that the mere expression of disfavored opinions could invite transportation or death.

More importantly, Gorsuch disavows any notion that the context of immigration deportation merits any special consideration and that the Court's holding is narrow, stressing that the problem with the statute is the procedural one of failing to provide notice (and standards for judges) rather than the substantive choice by Congress.

Taken together with Johnson, the holding in Dimaya means that statutes must be much more precise when defining a "crime of violence" or risk being held unconstitutionally vague.

[image: caricature of Justice Neil Gorsuch by Donkey Hotey via]

District Judge Holds Transgender Military Ban Subject to Strict Scrutiny

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In her opinion and Order in Karnoski v. Trump, United States District Judge Marsha Pechman of the Western District of Washington has reaffirmed her previous preliminary injunction (December 2017) on the basis of the plaintiffs' likelihood to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims in their challenge to the President's ban on transgender troops in the military, and further decided that the military ban is subject to strict scrutiny. (Recall that previous to Judge Pechman's preliminary injunction, United States District Judge for the District of Columbia Colleen Kollar-Kotelly in Doe v. Trump partially enjoined the president's actions and United States District Judge Marvin Garvis of the District of Maryland in Stone v. Trump issued a preliminary injunction against the United States military's ban on transgender troops and resources for "sex-reassignment" medical procedures).

The government's motion for summary judgment and to dissolve the preliminary injunction relied in large part on the President's new policy promulgated in March 2018. As Judge Pechman phrased it, the 2018 Presidential Memorandum

purports to "revoke" the 2017 Memorandum and “any other directive [he] may have made with respect to military service by transgender individuals,” and directs the Secretaries of Defense and Homeland Security to “exercise their authority to implement any appropriate policies concerning military service by transgender individuals.”

Rejecting the government defendants' argument that the controversy was now moot, Judge Pechman concluded that the 2018 Memorandum and Implementation Plan "do not substantively rescind or revoke the Ban, but instead threaten the very same violations that caused it and other courts to enjoin the Ban in the first place." The judge acknowledged that there were a few differences, but was not persuaded by the government defendants' argument that the 2018 policy did not now mandate a “categorical” prohibition on service by openly transgender people.

Similarly, Judge Pechman found that the individual plaintiffs, the organizational plaintiffs, and the plaintiff State of Washington continued to have standing.

Most crucial in Judge Pechman's order is her decision that transgender people constitute a suspect class and thus the ban will be subject to strict scrutiny. (Recall that in the previous preliminary injunction, Judge Pechman ruled that transgender people were at a minimum a quasi-suspect class). In this opinion, she considers four factors:

• whether the class has been “[a]s a historical matter . . . subjected to discrimination,”
• whether the class has a defining characteristic that “frequently bears [a] relation to ability to perform or contribute to society,
• whether the class exhibits “obvious, immutable, or distinguishing characteristics that define [it] as a discrete group,"
• whether the class is “a minority or politically powerless.”

After a succinct analysis, she concludes that suspect class status is warranted and because the "Ban specifically targets one of the most vulnerable groups in our society," it  "must satisfy strict scrutiny if it is to survive."

However, Judge Pechman did not decide on the level of deference the government defendants should be accorded. Instead, she concluded that

On the present record, the Court cannot determine whether the DoD’s deliberative process—including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon—is of the type to which Courts typically should defer.

However, she did agree with the government defendants that President Trump was not subject to injunctive relief, but did remain as a defendant for the purpose of declaratory relief.

Thus, Judge Pechman directed the parties to "proceed with discovery and prepare for trial on the issues of whether, and to what extent, deference is owed to the Ban and whether the Ban violates equal protection, substantive due process, and the First Amendment."

[image, Revolutionary War era soldier, NYPL, via]

 

Federal District Judge Orders Release of Detained Immigrant: The Right to Say Goodbye

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a brief and impassioned Opinion and Order  in Ragbir v. Sessions, United States District Judge Katherine Forrest of the Southern District of New York ordered the immediate release of immigrant rights activist Ravidatha ("Ravi") Ragbir, whose case has attracted much attention.

Judge Forrest noted with "grave concern" that Ragbir may have been targeted for his speech on immigration matters. She described Ragbir as a Legal Permanent Resident since 1994, living in Brooklyn, with his wife and daughter, both of whom are American citizens, and the Executive Director of the New Sanctuary Coalition of New York City, on the Steering Committee of the New York State Interfaith Network for Immigration Reform, and has  having served as the Chair of the Board of Families for Freedom.

The underlying immigration dispute involves what the judge called a "mysterious 'travel document,'" but the Judge found that this document should not decide the case:

The Court in fact agrees with the Government that the statutory scheme - - - when one picks the path through the thicket in the corn maze  - - - allows them to do what was done here.    But there are times when statutory schemes may be  implemented in ways that tread on rights that are larger, more fundamental. Rights that define who we are as a country, what we demand of ourselves, and what we have guaranteed to each other: our constitutional rights. That has occurred  here. 

In sum, the Court finds that when this country allowed petitioner to become  a part of our community fabric, allowed him to build a life with and among us and  to enjoy the liberties and freedom that come with that, it committed itself to  allowance of an orderly departure when the time came, and it committed itself to  avoidance of unnecessary cruelty when the time came. By denying petitioner these  rights, the Government has acted wrongly.          

Judge Forrest grounded her finding in the Due Process Clause of the Fifth Amendment:

But if due process means anything at all, it means that we must look at the totality of circumstances and determine whether we have dealt fairly when we are depriving a person of the most essential aspects of life, liberty, and family. Here, any examination of those circumstances makes clear that petitioner’s liberty interest, his interest in due process, required that we not pluck him out of his life without a moment’s notice, remove him from his family and community without a moment’s notice. The process that was due here is not process that will allow him to stay indefinitely - - - those processes have been had.  The process that is due here is the allowance that he know and understand that the time has come, that he must organize his affairs, and that he do so by a date  certain. That is what is due. That is the process required after a life lived among  us.

[footnotes omitted].

Judge Forrest continued:

Here, instead, the process we have employed has also been unnecessarily cruel. And those who are not subjected to such measures must be shocked by it, and  find it unusual.” That is, that a man we have allowed to live among us for years, to  build a family and participate in the life of the community, was detained,  handcuffed, forcibly placed on an airplane, and today finds himself in a prison cell.  All of this without any showing, or belief by ICE that there is any need to show,  that he would not have left on his own if simply told to do so; there has been no  showing or even intimation that he would have fled or hidden to avoid leaving as  directed. And certainly there has been no showing that he has not conducted  himself lawfully for years. Taking such a man, and there are many such men and  women like him, and subjecting him to what is rightfully understood as no different  or better than penal detention, is certainly cruel.    We as a country need and must not act so. The Constitution commands better.

She concluded:

Constitutional principles of due process and the avoidance of unnecessary cruelty here allow and provide for an orderly departure. Petitioner is entitled to the freedom to say goodbye.

[image via]

Ninth Circuit Rejects Minors' Right to Court-Appointed Counsel in Immigration Proceedings

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in C.J.L.G. v. Sessions, a panel of the Ninth Circuit held that neither the Due Process Clause of the Fifth Amendment nor the Immigration & Nationality Act includes a right to court-appointed counsel for minors.

C.J., a thirteen year old, fled Honduras with his mother after being threatened at gunpoint to join a gang, and arrived in the United States without documentation. Neither spoke English. In the removal proceedings, his mother was informed she could obtain an attorney, but she stated that she could not afford one. She filled out forms to request relief. Eventually an immigration judge held a brief hearing and issued a written denial of the application for asylum. withholding of removal, and relief under the Convention Against Torture, finding the minor had not demonstrated a well-founded fear of persecution or membership in a protected group, and that there was fear of torture or acquiescence of the government.

In a very brief concurring opinion, Judge John Owens notes that C.J., who was with his mother, was not an unaccompanied minor: "The opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors. That is a different question that could lead to a different answer."

Nevertheless, in the opinion by Judge Consuelo M. Callahan for what is essentially a unanimous panel, C.J.'s mother is not an advantage for C.J. Indeed, as the court's opinion states,

In C.J.’s case, the onus was almost entirely on the IJ [immigration judge] to develop the record. C.J.’s mother was ill-equipped to understand the proceedings or to comprehend C.J.’s burden in establishing eligibility for relief, and the government asked no questions. Thus, it was up to the IJ to discover any facts that might support C.J.’s asylum claim.

Judge Callahan notes that "alien minors" have the same Due Process rights as any other persons, and that there is a right to counsel under the federal statute and regulations, it is a different question whether C.J. is "entitled to court- appointed counsel at government expense—a privilege that Congress has not conferred." Additionally, to prevail C.J. must demonstrate that the denial of an attorney "prejudiced the outcome of his removal proceeding."

The court distinguished previous Ninth Circuit precedent regarding counsel who was inadequate, concluding that this did not include a right to court-appointed counsel. The court also refused to extend In re Gault (1967), holding that minors are entitled to court appointed counsel in some juvenile proceedings:

Nothing in Gaultor its progeny compels the outcome that minors in civil immigration proceedings who do not face the threat of incarceration are categorically entitled to court-appointed counsel. Indeed, “the [Supreme] Court has [never] determined that due process principles of fundamental fairness categorically require counsel in any context outside criminal proceedings.” Turner[ v. Rogers], 564 U.S. at 454 (Thomas, J., dissenting). We therefore hold that it is not established law that alien minors are categorically entitled to government- funded, court-appointed counsel.

The court then engaged in a Matthews v. Eldridge balancing test for procedural due process, to “determine what process is due by balancing (1) the private interest at stake, (2) ‘the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional safeguards,’ and (3) the government’s interest, including the burdens of any additional process.” The court found some appeal with the government's argument that there was only a slight private interest because C.J. had only been in the United States a few days, but concluded that C.J. did meet the first factor because the gang "attempted to recruit him under duress—at gunpoint no less—before he fled provides reason to believe that C.J. would encounter similar threats and perhaps worse upon his return."

As to the second Matthews factor, the court acknowledged that an attorney usually makes a difference in removal proceedings for minors, but considered whether here the Immigration Judge provided a "full and fair hearing" but considering the elements of the claim and the evidence.  Although the court stated that "To be sure, C.J.’s removal proceeding was not a paragon of procedural decorum" and the "IJ should have more clearly explained the standard for asylum relief," the court nevertheless concluded that "C.J. falls well short of accomplishing this Herculean task [of satisfying this factor] because he fails to show that the process Congress prescribed is categorically inadequate to vindicate an alien minor’s right to due process. The second Mathews factor favors the government."

As to the third factor, the court concludes that the government's burden would be a financial one: "Requiring government-funded counsel would significantly increase the funds expended on immigration matters."

 

The court therefore found no procedural due process right to appointed counsel and further bolstered this finding with a discussion of the judicial role and separation of powers, a discussion of the merits of the other substantive claims under the INA.

 

The window left open by the concurring opinion - - - the case of unaccompanied minors - - - will most likely be the next subject of litigation.

 

NAACP Challenges Recission of TPS Status for Haitians As Violating Equal Protection

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a Complaint filed in the United States District of Maryland in National Association for the Advancement of Colored People v. United States Department of Homeland Security, the NAACP challenges the Trump Administration's decision to rescind Temporary Protective Status (“TPS”) for Haitian immigrants, as a violation of equal protection. The complaint argues that the rescission springs from an intent to discriminate on the basis of race and/or ethnicity.

 

Essentially COUNT I of the Complaint, based on the equal protection component of the Fifth Amendment, contents that there is sufficient governmental intent so that the classification should be deemed as a racial one. As ¶88 provides:

The inference of race and/or ethnicity discrimination is supported by the Administration’s departure from the normal decision-making process; the fact that the decision bears more heavily on one race than another; the sequence of events leading to the decision; the contemporaneous statements of decisionmakers; and the historical background of the decision. The Supreme Court has recognized these factors as probative of intentional discrimination. See Vill. of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977).

Subsequent paragraphs of the complaint track these Arlington Heights factors with more specificity. Earlier, the complaint in ¶ 79 mentions the President's notorious comments:

On January 11, 2018, during a White House meeting with several U.S. Senators, the President is alleged to have disparaged a draft immigration plan that protected people from Haiti, El Salvador, and some African countries, asking, “Why are we having all these people from shithole countries come here?”President Trump is alleged to have further disparaged Haitians in particular, asking “Why do we need more Haitians?” and ordered the bill’s drafters to “take them out.”In this meeting, the President is further alleged to have expressed his preference for more immigrants from places like Norway, where the population is over 90 percent white. Haiti’s population, by contrast, is over 95 percent Black.

[footnotes omitted].  If there is a racial classification, the court would apply strict scrutiny requiring a compelling governmental interest that is served by narrowly tailored means.

Interestingly, the equal protection count also includes this simple statement and citation: "The Due Process Clause of the Fifth Amendment also prohibits irrational government action. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973)."  Recall that the Court in Moreno found that a Congressional statute defining households for foodstamp eligibility as only including relatives - - - in order to exclude "hippie communes" - - - was irrational because a bare "desire to harm a politically unpopular group" could not constitute a legitimate government interest.  This "animus" doctrine, also evident in cases like Romer v. Evans and United States v. Windsor, is another way that the challengers could prevail on their equal protection claim. Thus, even if the court does not find there is a racial (or ethnic) classification meriting strict scrutiny, the court could decide that there is sufficient animus here to negate the legitimate interest required under rational basis, the most lenient standard.

It will be interesting to see how the Department of Justice responds.  Meanwhile, ConLawProfs teaching equal protection this semester could use this as the basis for a great problem.

 

Court Says DOJ Gang Designation Is Not Reviewable as a Final Agency Action

Steven D. Schwinn, John Marshall Law School

The Sixth Circuit ruled this week that the DOJ's and FBI's designation of a group as a "gang" wasn't a final agency action, and therefore the group couldn't challenge the designation as violating the First Amendment under the Administrative Procedure Act.

The case arose when the FBI's National Gang Intelligence Center designated Juggalos, fans of the musical group Insane Clown Posse, as a gang. Juggalos display distinctive tattoos, art, clothing, symbols, and insignia that demonstrate their affiliation with Insane Clown Posse, and associate with each other in order to share their support of the group. According to the NGIC Report, "many Juggalo[] subsets exhibit gang-like behavior and engage in criminal activity and violence."

Juggalos brought an APA claim against the DOJ and FBI, arguing that the gang designation violated their First and Fifth Amendment rights, because other law enforcement officers (including state and local officers) used the NGIC Report to target them.

The Sixth Circuit dismissed the case. The court said that the designation didn't cause law enforcement officers to target Juggalos; instead, officers voluntarily relied on the NGIC and used it for their own enforcement purposes. Therefore, the designation didn't cause any legal consequences to Juggalos, and it wasn't a final agency action under the APA.

The court noted, however, that its ruling didn't foreclose First Amendment suits against local law enforcement officers under 42 U.S.C. Sec. 1983.