Saturday, June 25, 2022
She went from undocumented immigrant to Syracuse University's first Asian-American history professor
It is a good time for an upbeat story. Professor Junko Takeda recently became the first Asian-American and woman of color to be promoted to full professor in the history department at Syracuse University. A first generation college student, she once was undocumented. Professor Takeda today is an established scholar in the field of early modern French history.
"Takeda was born to a Japanese mother and a Korean father in Japan. Her parents came to the United States with student visas in 1979 when she was three years old. They were both daycare providers and looked for a better life and more opportunities for their daughter. After their student visas expired and their employers declined to help them obtain H1 visas, they remained here, undocumented, under a looming specter of deportation."
For the last 24 hours -- and probably for the indefinite future, the Supreme Court's overruling of Roe v. Wade dominated the news cycle. My new UC Davis colleague, Mary Ziegler, a legal historian, has been a "go to" commentator on the decision for news outlets across the country. Immigrant women -- especially poor ones (and here) including many immigrant women of color -- in the United States, of course, will be affected by the Court's decision.
It will take some time to see the full impacts of the Supreme Court's decision in the Dobbs v. Jackson Women’s Health. Many questions will arise about the breadth of the decision. Will, for example, the federal government continue to provide access to abortions for immigrant women in detention? Access to an abortion by a detained immigrant teen was the subject of litigation a few years ago. Justice Brett Kavanaugh as a court of appeals judge was involved in that case.
Wisconsin Public Radio interviews author and columnist Wajahat Ali talks about his book Go Back to Where You Came From. Although critical of the contemporary racial terrain of the United States, Ali is optimistic about the future. That outlook is much-needed in these challenging times.
Immigration Article of the Day: Impact of Forensic Medical Evaluations on Immigration Relief Grant Rates and Correlates of Outcomes in the United States
Impact of Forensic Medical Evaluations on Immigration Relief Grant Rates and Correlates of Outcomes in the United States, Journal of Forensic and Legal Medicine, 2021. The authors:
HOLLY G. ATKINSON, City University of New York (CUNY) - School of Medicine
KATARZYNA WYKA, City University of New York (CUNY) - Center for Systems and Community Design
KATHRYN HAMPTON, Physicians for Human Rights
CHRISTIAN L. SENO, CUNY School of Law
ELIZABETH T. YIM, City University of New York (CUNY) - School of Medicine
DEBORAH OTTENHEIMER, Gotham Health
NERMEEN ARASTU, CUNY School of Law
The purpose of this study was to investigate the impact of forensic medical evaluations on grant rates for applicants seeking immigration relief in the United States (U.S.) and to identify significant correlates of grant success. We conducted a retrospective analysis of 2584 cases initiated by Physicians for Human Rights between 2008 and 2018 that included forensic medical evaluations, and found that 81.6% of applicants for various forms of immigration relief were granted relief, as compared to the national asylum grant rate of 42.4%. Among the study’s cohort, the majority (73.7%) of positive outcomes were grants of asylum. A multivariable regression analysis revealed that age, continent of origin, history of sexual or gender-based violence, gang violence, LGB sexual orientation, and being detained by the U.S. government at the time of evaluation request were statistically associated with case outcomes. Forensic physical evaluation was more strongly associated with a positive outcome than forensic psychological evaluation. Our findings strengthen and expand prior evidence that forensic medical evaluations can have a substantial positive impact on an applicant’s immigration relief claim. Given the growing applicant pool in the U.S., there is an urgent need for more trained clinicians to conduct forensic medical evaluations as well as to educate adjudicators, immigration lawyers, and policy makers about the traumatic nature of the life-altering events that applicants for immigration relief experience.
Friday, June 24, 2022
Robert Lloyd of the Los Angeles Times proclaims that "'Gordita Chronicles' is the sitcom of the summer." The immigration-themed premise is simple; as summarized on IMDb, "[a] Latina reporter looking back on her childhood as a chubby, willful and reluctant Dominican immigrant growing up with her eccentric family in 1980s Miami."
The HBO Max series premiered yesterday and stars Olivia Gonclaves, Juan Javier Cardenas, Diana Maria Riva, and Savannah Nicole Ruiz. Zoe Saldana and Eva Longoria are behind the project. Shadow and Act spoke with the cast, as well as Saldana and Longoria.
Here is a review in the Hollywood Reporter.
I watched the first episode and likely will watch the rest of the series. The show is upbeat and light and offers a glimpse at the immigrant experience. Think a Dominican immigrant version of The Wonder Years or less complicated Jane the Virgin.
Much of the debate over the justice of immigration restrictions properly focuses on their impact on would-be migrants. For their part, restrictionists often focus on the potentially harmful effects of immigration on residents of receiving countries. This article cuts across this longstanding debate by focusing on ways in which immigration restrictions inflict harm on natives, specifically by undermining their economic liberty. The idea that such effects exist is far from a new one. But this article examines them in greater detail, and illustrates their truly massive scale. It covers both the libertarian “negative” view of economic freedom, and the more “positive” version advanced by left-liberal political theorists.
Part I focuses on libertarian approaches to economic freedom. It shows that migration restrictions severely restrict the negative economic liberty of natives, probably more than any other government policy enacted by liberal democracies. That is true both on libertarian views that value such freedom for its own sake, and those that assign value to it for more instrumental reasons, such as promoting human autonomy and enabling individuals to realize their personal goals and projects.
In Part II, I take up left-liberal “positive” theories of economic freedom, which primarily focus on enhancing individuals’ access to important goods and services, and enabling them to have the resources necessary to live an autonomous life. Some also focus on expanding human capacities generally, or give special emphasis to enhancing the economic prospects of the poor. Here too, migration restrictions impose severe costs on natives. To the extent migration can sometimes harm the economic prospects of natives, the issue is better dealt with by “keyhole solutions” that address specific problems by means other than restricting migration.
Finally, Part III describes how to address situations where potentially harmful side effects of migration might undermine either negative or positive economic liberty of natives, without actually restricting migration. I have addressed such issues in greater detail in previous work, and here provide only a short summary of my approach and its relevance for economic liberty issues.
Thursday, June 23, 2022
This week marked the passing of Clela Rorex, a clerk from Boulder County, Colorado who in 1975 issued a marriage license to a gay couple decades before the movement took root. The Colorado Governor, Jared Polis, and national media have described her legacy for the LGBT community, which is fitting during Pride Month. Governor Polis said in the NY Times article:
“So many families, including First Gentleman Marlon Reis and I, are grateful for the visionary leadership of Clela Rorex.”
Less attention has been paid to Rorex's role in extending a key benefit of marriage: citizenship acquisition for spouses. Those who teach immigration law today may consider the case law straightforward. But until same sex marriage became federally recognized in United States v. Windsor (2013), it was not settled that a gay citizen could pass on citizenship to his partner. Shortly after Windsor was announced, Janet Napolitano on behalf of the Department of Homeland Security directed the U.S. Citizenship and Immigration Services to "review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse."
Although perhaps taught as a historical background in the case book, Adams v. Howerton has long been the lead case on marriage in immigration law. It was the first U.S. lawsuit to seek recognition of a same-sex marriage by the federal government, and it initially failed: the case stands for the proposition that the term "spouse" refers to an opposite-sex partner for the purposes of immigration law.
Mr. Adams was born in the Philippines. His family moved to the United States when he was 12, and he grew up in Minnesota. Adams became a naturalized U.S. citizen in 1968 and was living in Los Angeles, California when he met Anthony Corbett "Tony" Sullivan, an Australian citizen who was visiting the U.S. on a tourist visa. They were one of six gay couples granted marriage licenses by Ms. Rorex in Boulder, Colorado on April 21, 1975. On the basis of the marriage, Mr. Adams applied to the Immigration Naturalization Service for Mr. Sullivan's citizenship as an immediate relative, but he was denied. The denial letter stated that "[Adams and Sullivan] have failed to establish that a bona fide marital relationship can exist between two faggots." A revised letter was later sent, explaining that "[a] marriage between two males is invalid for immigration purposes and cannot be considered a bona fide marital relationship since neither party to the marriage can perform the female functions in marriage.
After losing Sullivan's appeal of his deportation order in 1985 and being denied Adams' request for residency by Australia, in 1985 the couple traveled in Europe for a year. Afterward, they returned to the U.S., lived in Los Angeles, and avoided high-profile activism that might attract the attention of immigration authorities. Adams worked for a law firm as an administrator until his retirement in 2010. After retirement, Adams and Sullivan made some appearances at events supporting same-sex marriage. Adams died at his Los Angeles home on December 17, 2012.
Sullivan survived him and, on April 21, 2014, on their 39th wedding anniversary, Sullivan filed a motion with the Los Angeles Field Office of U.S. Citizenship and Immigration Services (USCIS) to reopen and reconsider his late husband's petition for a marriage-based green card which that office had denied. On January 5, 2014, the USCIS approved Adams' immigrant visa petition filed in 1975 on behalf of his husband. Sullivan received his green card in April 2016.
Limited Partnership, a documentary telling the couple's story, was released by Tesseract Films in 2014 and makes for a compelling immigration class!
This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.
Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court in an extraordinary decision that jars modern racial sensibilities declared that Congress possessed “plenary power”—absolute authority—over immigration and that racist immigration laws were immune from judicial review of their constitutionality.
The bedrock of U.S. immigration jurisprudence for more than a century and never overruled by the Supreme Court, the plenary power doctrine permits the treatment of immigrants in racially discriminatory ways consistent with the era of Jim Crow but completely at odds with modern constitutional law. The doctrine enabled President Trump, a fierce advocate of tough-as-nails immigration measures, to pursue the most extreme immigration program of any modern president, with
devastating impacts on noncitizens of color.
As the nation attempts to grapple with the Trump administration’s brutal treatment of immigrants, it is an especially opportune historical moment to reconsider the plenary power doctrine. Ultimately, the commitment to remove systemic racism from the nation’s social fabric requires the dismantling of the doctrine and meaningful constitutional review of the immigration laws. That, in turn, would open the possibilities to the removal of systemic racial injustice from
immigration law and policy.
Monday was World Refugee Day. Up in Chicago, the local news interviewed many (including immprof Rev. Craig B. Mousin) about how the area is responding to refugees from around the globe.
Here's a good youtube snippet:
You can find more indepth commentary from Mousin at this link.
Professor Jack Chin has an article that ImmigrationProf blog readers may find of interest. Published with several commentaries (including one by me) by the University of Pennsylvania Journal of Constitutional Law, the article is entitled "Dred Scott and Asian Americans." Read Full Article
Here is the abstract of the article:
"Chief Justice Taney’s 1857 opinion in Dred Scott v. Sandford is justly infamous for its holdings that African Americans could never be citizens, that Congress was powerless to prohibit slavery in the territories, and for its proclamation that persons of African ancestry “had no rights which the white man was bound to respect.” For all of the interest in and attention to Dred Scott, however, no scholar has previously analyzed United States v. Dow, an 1840 decision of Chief Justice Taney in a circuit court trial which is apparently the first federal decision to articulate a broad theoretical basis for white supremacy. Dow identified whites as the “master” race, and the opinion explained that only those of European origin were either welcomed or allowed to be members of the political community in the American colonies. Non-whites such as members of Dow’s race, Taney explained, could be reduced to slavery, and therefore their rights continued to be subject to absolute legislative discretion. Dow, however, was not a person of African descent—he was Malay, from the Philippines. Chief Justice Taney’s employment in Dow of legal reasoning which he would later apply in Dred Scott suggests that Dred Scott should be regarded as pertinent to all people of color, not only African Americans. This understanding of Dred Scott helps explain the revival of Taney’s reputation during the Jim Crow era after Reconstruction. Courts declined to invalidate restrictions with respect to a broad range of civil rights on citizens and immigrants of African, Indian, Asian, and Mexican ancestry to which whites were not subject. Indeed, whites could not be subject to them, unless it is conceivable that under the U.S. Constitution, the law could provide, for example, that all races would be ineligible to testify or vote because of their race. Accordingly, even after Reconstruction—just as Dred Scott and Dow contemplated—the white race remained the master race, in the sense that members of that race were the exclusive holders of truly inalienable rights."
Jack's article and the symposium contributions are well worth reading. As the title of my contribution suggests ("Dred Scott and Asian Americans: Was Chief Justice Taney the First Critical Race Theorist?"), I had fun commenting on Jack's insightful article.
More positive ~~ vibes ~~ on Senate floor.— Igor Bobic (@igorbobic) June 21, 2022
A smiling Cornyn tells Padilla, “First guns, now it’s immigration”
“That’s right, we’re going to do it,” Sinema added
Earlier this year, there was talk about a bipartisan immigration reform proposal in Congress. This Fox News headline suggests that one should not hold her breadth: "Cornyn's office denies bipartisan immigration bill in the works amid conservative uproar"
Senator Cornyn’s reported comments drew swift backlash from the right, many of whom were already angered by his support for the gun legislation. Cornyn has previously backed bipartisan immigration efforts, including a border security bill. He has also backed a pathway to citizenship for Deferred Action for Childhood Arrivals (DACA) recipients.
Ohio Republican Senate candidate J.D. Vance said on Fox News’ "Ingraham Angle" that it would be "catastrophic" for the Republican Party to "advance amnesty."
"Documented Dreamers": The children of employment-based visa holders often have to scramble to find ways to legally remain in the country they call home
Teresa Mathew in the New Yorker offers stories focusing on the dependents of H1-B visa holders showing that "[t]he children of employment-based visa holders often have to scramble to find ways to legally remain in the country they call home." Mathew writes:
"the children of employment-based visa holders often have to scramble to find ways to legally remain in the country they call home. And, even with a visa, they are locked out of many of the advantages granted to U.S. citizens and permanent residents. Because of visa strictures, some children are from families in which only one parent is allowed to work. Once in college, they are usually ineligible for either in-state tuition or federal financial aid, and required to pay the fees of an international student. David Bier, an associate director of immigration studies at the Cato Institute, estimates that there are more than a quarter of a million young adults who are caught in [this] tangled visa web . . . . Many of these young adults call themselves Documented Dreamers or Visa Dreamers, and see a clear connection between their situation and that of Dreamers: the term often used to describe undocumented minors seeking legal residency in the U.S. "
Immigration Article of the Day: Opening the Pandemic Portal to Re-Imagine Paid Sick Leave for Immigrant Workers by Shefali Milczarek-Desai
The Covid-19 pandemic has spotlighted the crisis low wage immigrant and migrant (“im/migrant”) workers face when caught between the century-long collision between immigration enforcement and workers' rights. Im/migrant workers toil in key industries from health care to food production that are now associated with laudable buzzwords such as “frontline” and “essential” but that conceal jobs that pay little, are dangerous to health and safety, and have high rates of legal violations. Im/migrant workers, however, are unlikely to benefit from employment and labor law protections, including paid sick leave. This has proven deadly during the pandemic. When im/migrants show up to work ill, they endanger not only themselves but risk transmission to co-workers, customers, patients, and the public at large. This has been starkly illustrated in nursing homes, which are heavily reliant on im/migrant labor and have been the locus of nearly one-third of all coronavirus deaths. The pandemic presents an opportunity to analyze why and how existing paid sick leave laws fail im/migrant workers. It also is a portal to re-imagine paid sick time in a way that will benefit im/migrant workers and by extension a nation facing labor shortages and high worker turnover as demand for goods and services rises.
This article is the first to scrutinize paid sick leave laws through the lenses of critical race, movement, and health law theories. It argues that existing paid sick leave laws fail im/migrant workers because they ignore these workers’ social and economic situations and singularly focus on workers’ rights rather than collective well-being. Drawing from critical race, movement, and health law frameworks, this article situates paid sick leave within a public health matrix based on mutual aid. It argues that when paid sick leave laws are drafted and enforced in a manner that is informed by workers’ lived experiences and contextualized within a broader public health conversation, employment and labor protections can better safeguard im/migrant workers and the health and safety of the entire nation while reducing the tensions between immigration enforcement and workers’ rights.
Wednesday, June 22, 2022
Yesterday, I was reading Understanding Immigration Law (as one does on a Tuesday morning) and I was particularly struck by this quote from sociologist Rubén G. Rumbaut (U.C. Irvine) at the start of the book: "in a world of 6.5 billion people, 98 percent are 'stayers,' living in the country of their birth..." Now this quote dates to 2005, I don't know if Rumbaut would make the same pronouncement today, but it's an absolutely fascinating perspective.
Rumbaut's quote was lingering in the back of my mind when I (re)read this recent BBC article regarding the mobility of African youth. The article begins with this payoff statement:
A new survey of more than 4,500 young people in Africa, aged 18-24, has found that 52% of them are likely to consider emigrating in the next few years, citing economic hardship and education opportunities as the top reasons.
52%! That's really high.
The BBC goes on to interview 5 young Africans in depth to discuss their particular feelings about emigrating. Their statements covered everything from the kidnapping and ransom crisis in Nigeria (I didn't know about that!) to lack of job opportunities.
Here are some interesting quotes from two interviewees considering leaving their countries:
- 18-year-old Ayoade Oni from Nigeria: "90% if not all of" [his friend want to leave Nigeria].
- Mapula Maake, 23, from South Africa: "Migration might be the only solution to this rather saturated job market."
- Ivor Ichikowitz (survey designer): "This group of people, 18 to 24 year olds in Africa, are saying: 'We are going to improve our lives, even if it means having to up and leave and go somewhere else.'"
Here are some interesting quotes from two interviewees looking to stay:
- 24-year-old Julius Kwame Anthony, the former head of the National Union of Ghana Students: "Relocating abroad may look rosy but nothing is really promised out there."
- 33-year-old Ghanian businessman Ernest Larmie: "This is home, if I'm able to solve the problems here, when the next generation comes, they can also benefit ," he says, questioning the logic behind moving abroad, just to help another country develop at the expense of your own.
The Michigan Journal of Race and the Law has published an issue analyzing the harmful impacts of the "War on Terror" on Muslims in the United States. Here is the full list of articles available for download here.
Natsu Taylor Saito
Sahar F. Aziz
Wadie E. Said
Khaled Ali Beydoun
Asma T. Uddin
Immigration Article of the Day: Due Process in Removal Proceedings After Thuraissigiam by Diana G. Li
The Immigration Article of the Day is "Due Process in Removal Proceedings After Thuraissigiam" by Diana G. Li, published in April 2022 in the Stanford Law Review.
Here is the Abstract:
It is well established that Congress wields plenary power over the admission of noncitizens at the border. But when the government removes noncitizens who have already entered the country, including those who did so without lawful admission, the
boundaries of its power are less clear. The Supreme Court confronted this issue in Department of Homeland Security v. Thuraissigiam. There, the Court rejected an asylum seeker’s attempt to challenge his removal proceedings under both the Suspension Clause
and the Due Process Clause. While scholars have focused on the Suspension Clause
holding, this Note focuses on the Due Process portion of the opinion, which held that
Thuraissigiam had no procedural due process rights because he had made it only twenty-five yards inside the border. Beyond that core holding, the opinion also implied two additional principles: first, that whether a noncitizen facing removal can claim procedural due process rights may depend on the existence of “established connections” with the United States, and second, that those due process rights are contingent on lawful admission.
This Note argues that lower courts should limit Thuraissigiam’s holding to its facts and avoid giving legal force to those two principles, which were arguably dicta. Courts should not read Thuraissigiam as an invitation to subject noncitizens’ constitutional rights to nebulous ties-based tests or to pin those rights to the ever-changing statutes and regulations that govern admission. Instead, courts should affirm the longstanding principle that all noncitizens who have successfully entered the United States enjoy procedural due process rights in their removal proceedings, regardless of whether they obtained lawful admission. In addition to preserving the fundamental constitutional rights of noncitizens already within our borders, this position reconciles Thuraissigiam with Supreme Court precedent, which has generally recognized that those noncitizens are entitled to procedural due process rights with respect to their removal.
Uvalde is ~80% Latinx w/ large immigrant pop. U.S CBP assisting w/ response b/c it’s the biggest law enforcement agency in area. The same officer involved in deportation of your family member could now be telling you your child has died…this is what systemic trauma looks like.— Thania Galvan, PhD (@ThaniaGalvanphd) May 25, 2022
Two massacres in Texas. Two DHS responses. Today, DHS said it won't conduct immigration enforcement activities in Uvalde. In 2021, ICE deported a woman who survived the El Paso massacre & helped prosecutors put together their case against the shooting. Will DHS keep its promise? pic.twitter.com/jrjnPKpzy4— César (@crimmigration) May 25, 2022
The approach of law enforcement and immigration enforcement agencies affect immigrant communities -- and their perception of agencies involved in that enforcement -- in distinctive ways.
During the administration of President Trump, a "zero tolerance" approach allowed for immigration enforcement anywhere and everywhere, even at courthouses where noncitizens handle their legal business. As a result, immigrant communities lived in fear of engaging in the tasks of daily life, such as going to work, taking their children to school or the doctor, or attending church. The Biden administration reversed that approach, prohibiting immigration enforcement at hospitals, schools, and a range of other “protected” areas.
The tragic gun deaths in Uvalde, Texas has Congress looking seriously at reform of the nation's gun safety laws. In the flood of news reports in the wake of the tragedy, I missed the immigration angle of the events in Uvalde. Isabela Diaz for Mother Jones succinctly lays out the issues:
"Hours after yet another mass shooting killed 19 children and two teachers at Robb Elementary School in Uvalde, Texas, desperate parents were still trying to find out if their kids were dead or alive. . . .
In a community like Uvalde, about 85 miles west of San Antonio and not far from the border with Mexico, the unfathomable grief and trauma might be further complicated by the fear of immigration enforcement. The immigration status of the victims and families continues to be rightfully undisclosed, but the school district’s population is 90 percent Hispanic, leading to concerns by immigrant rights advocates that the presence of Department of Homeland Security (DHS) agents might further traumatize relatives in mixed-status families seeking information from authorities and trying to reunite with their children.
Agents with Customs and Border Protection (CBP) . . . were among the first law enforcement to respond to the shooting. . . . Roughly 80 border patrol agents . . . were present at the scene. Among them were members of the SWAT-like elite team known as BORTAC, or Border Patrol Tactical Unit, who reportedly shot the 18-year-old gunmen. . . . [A] former CBP agent told the Guardian [after BORTAC's involvement in policing protests by the Trump administration] that, in her experience, BORTAC were among `the most violent and racist in all law enforcement.'”
The DHS released a statement on May 25 emphasizing that the agency would not be engaging in enforcement in Uvalde:
"U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) remind the public that sites that provide emergency response and relief are considered protected areas. To the fullest extent possible, ICE and CBP do not conduct immigration enforcement activities in protected areas such as along evacuation routes, sites used for sheltering or the distribution of emergency supplies, food or water, or registration sites for disaster-related assistance or the reunification of families and loved ones.
ICE and CBP provide emergency assistance to individuals regardless of their immigration status. DHS officials do not and will not pose as individuals providing emergency-related information as part of any enforcement activities.
The site of the tragedy in Uvalde, Texas is a protected area. To the fullest extent possible, ICE and CBP will not conduct immigration enforcement activities there so that individuals, regardless of immigration status, can seek assistance, reunify with family and loved ones, and otherwise address the tragedy that occurred."
In a decision released on Tuesday, United States v. Taylor, No. 20-1459, the U.S. Supreme Court ruled 7-2 in favor of Justin Taylor that an attempted Hobbs Robbery is not a “crime of violence” because it lacks an element of use of force. The decision has important implications not just in the context of criminal sentencing law, but also in immigration law where the categorical approach is applied.
The Taylor decision, delivered by Justice Neil Gorsuch, addressed a conviction under 18 U.S.C. § 924(c), which enhances the criminal punishment for those who commit a “crime of violence” while carrying or using a gun. Under § 924(c), a federal felony qualifies as a “crime of violence” if it has an element the use, attempted use, or threatened use of physical force against the person or property of another. (It also qualifies under the so-called residual clause which includes offenses that involve a substantial risk of physical force, but the Court found that clause unconstitutionally vague in United States v. Davis, 588 U. S. ___ (2019).)
The decision is yet another strong endorsement of the Court’s categorical approach, which the Court explains “does not require—in fact, it precludes—an inquiry into how any particular defendant may commit the crime. The only relevant question is whether the federal felony at issue always requires the government to prove—beyond a reasonable doubt, as an element of its case—the use, attempted use, or threatened use of force.” In an extended discussion, the decision also revisits the Court’s decision in an important immigration-related categorical analysis case, Gonzales v. Duenas-Alvarez, 549 U. S. 183 (2007), in which the Court looked to state decisional law and asked if there was a “realistic probability” that the state would apply a statute “to conduct that falls outside” the generic definition.
The two dissenters are Justice Clarence Thomas and Justice Samuel Alito, who wrote separately. Citing to Alice in Wonderland, and arguing that the Court should focus on what Mr. Taylor “actually did,” Justice Thomas wrote that the Court’s ruling “exemplifies just how this Court’s ‘categorical approach’ has led the Federal Judiciary on a ‘journey Through the Looking Glass,’ during which we have found many ‘strange things.’” Justice Alito, for his part, agrees with Thomas, but argues that Mr. Taylor’s conviction meets the definition of a crime of violence.
Tuesday, June 21, 2022