Friday, April 30, 2021

TRAC Report on MPP Data

During the Trump administration, the Department of Homeland (DHS) implemented the Migrant Protection Protocols (MPP)—also known as ‘Remain in Mexico’—in January 2019 in an effort to restrict those seeking asylum from entering the United States. Under the Biden administration, DHS has ended MPP and begun to admit asylums-seekers that were originally excluded under MPP into the United States. TRAC analyzed the updated data on MPP cases through the end of March 2021 to provide the public with data-driven insights into the evolution of how MPP cases are being handled by the federal government.

The report can be found in its entirety here: .

Key findings include:

  • 26,432 MPP cases were pending at the U.S.-Mexico border at the end of January 2021.
  • Since January, the cases of 3,911 people were transferred from MPP courts to non-MPP courts, indicating that these people were permitted to enter the United States to pursue their asylum claims. 
  • 28% of the 6,200 MPP cases at the immigration court in Brownsville, Texas were transferred by the end of March 2021. Just 3% of the 10,800 MPP cases at the immigration court in Laredo were transferred.
  • Cuban nationals represented the largest group of pending cases at the end of January: 7,600 in total. 16% of all Cuban cases were transferred out of MPP by the end of March.
  • Nationals of El Salvador represented just under 2,000 cases in January. By the end of March, more than 26% of these cases were transferred out of MPP courts—the highest rate among all nationalities.
  • MPP cases have been transferred to 63 non-MPP courts across the country. The top three courts for receiving MPP cases were immigration courts in (1) Miami, Florida (651 cases), (2) Orlando, Florida (321 cases), and (3) Dallas, Texas (201 cases). Also in the top 10: Arlington, Virginia; Memphis, Tennessee; and Baltimore, Maryland.
  • Attorneys were on record as representing clients in 21% of cases transferred out of MPP since January. Just 10% of pending MPP cases still in MPP courts had an attorney. 43% of the 2,987 people in MPP who were allowed to enter the US under the Trump administration prior to January 31, 2021, had attorneys. This suggests that once cases are in the United States and the longer cases remain in the United States, the more likely it is that people are able to obtain an attorney.
  • 85% of the MPP cases pending along the border at the start of the Biden administration remained assigned to MPP courts at the end of March.
  • Note: due to routine administrative delays, the number of migrants actually allowed to enter the U.S. is likely larger the number of cases that have been transferred according to the court’s database.


April 30, 2021 in Current Affairs | Permalink | Comments (0)

From The Bookshelves: The Most Common Arguments Against Immigration and Why They’re Wrong by Alex Nowrasteh

Final Cover

The Most Common Arguments Against Immigration and Why They’re Wrong is available as a free .pdf over at (website tagline: "Many people believe that liberty is the core political value of modern civilization itself, the one that gives substance and form to all the other values of social life. They are called libertarians."). It's also a $5 booklet from

Here's their quick take on the book:

From “immigrants are going to take American jobs” to “they’re going to commit crimes” or “they won’t learn English,” we’ve heard it all. The Most Common Arguments Against Immigration and Why They’re Wrong contains the 15 most common arguments against immigration and Nowrasteh’s responses to them.

From economics to crime, terrorism, cultural assimilation, and the voting habits of immigrants, he considers the most common arguments against immigration and rejects them using sound reasoning and evidence.


April 30, 2021 in Books | Permalink | Comments (0)

Pro bono opportunity to help immigrants without leaving home: ABA calls on volunteers to help with ProBAR video project


Amanda Robert for the ABA Journal reports that the ABA Section of Litigation’s Pro Bono Task Force is offering members a new opportunity to record short, 5- to 10-minute videos to help attorneys at the South Texas Pro Bono Asylum Representation Project in Harlingen, Texas, improve their litigation skills. The videos can be recorded on Zoom and cover general litigation tips, such as written or oral advocacy, as well as writ practice and criminal practice.

ABA President Patricia Lee Refo says the idea for the project was inspired by her own trip to the border in August 2019.

For more information, visit the Pro Bono Task Force website.


April 30, 2021 in Current Affairs | Permalink | Comments (0)

Thursday, April 29, 2021

Biden Can Address the Border and Central American Violence Without Legislation


Here's a link to my op-ed in the LA Times today:

President Biden’s about-face on the number of refugees he will allow to resettle in the U.S. this year is an opportunity for him to also address the seemingly unmanageable border situation and the violence in Central America.

At first, the administration said it would not increase this year’s historically low refugee cap of 15,000, which was established by President Trump. After blowback from refugee rights advocates and Democratic allies, the White House appeared to backtrack. A new cap is expected to be announced by May 15. Previously, Biden had said he wanted to increase it to 62,500 — a number many advocates would like to see.

Here’s where the southern border and Central American opportunities come in. Read more here...


April 29, 2021 | Permalink | Comments (0)

ABA Conference on Administrative Law and Homeland Security

Jill Family from Widenor Law School shares that: "On May 7, the ABA Administrative Law section is hosting its spring conference with two tracks.  One track is Admin Law 101, which provides a great opportunity to learn about areas of administrative law or to brush up on what you already know.  This track includes a White House Oversight 101 panel.  The other track is Homeland Security, which will include a panel on immigration.  

Flyer with registration here.


April 29, 2021 in Conferences and Call for Papers, Current Affairs | Permalink | Comments (0)

Assessing President Biden's First 100 Days in Immigration

AILA has published a series of 12 charts comparing President Biden’s accomplishments 100 days after entering office with the comprehensive recommendations AILA presented to the president in A Vision for America as a Welcoming Nation. Each of the 12 charts presents a major area of reform and is accompanied by an Executive Summary evaluating how the Biden Administration has performed in AILA’s priority areas.

AILA Chart 2

Other assessments of what has and hasn't changed in Biden's administration by CBS, USA Today, and Fox. Most media accounts acknowledge a roll back of Trump's most exclusionary policies and a pull back on restrictions to legal migration. They also say there is more work to be done on refugee and asylum policy, including the continuing crisis at the border.


April 29, 2021 | Permalink | Comments (0)

Niz-Chavez: Gorsuch Authors SCOTUS' Response to Pereira "Groundhog Day" Case

U.S. Supreme Court no. 6393, photo by Eric E. Johnson

Today, SCOTUS issued an opinion in Niz-Chavez v. Garland.

Short take: A noncitizen will continue to accumulate time towards their continuous presence in the United States, for purposes of cancellation of removal, until they receive a single document containing all the information about their hearing required by 8 U.S.C. § 1229(a)(1)-- including not only the grounds for their removal but also the time and place of their removal hearing. The government cannot trigger the stop-time rule by sending multiple documents, each containing a portion of the statutorily required information.

Back in November, I wrote about oral argument in this case. I noted that Gorsuch was on fire during questioning: 

In questioning petitioner, [Gorsuch] said: "It sure seems a little bit like Pereira groundhog day to me." Then, when questioning the respondent, he said: "I guess I'm curious why the government is pursing this at all given Pereira. I know it doesn't squarely address this, but I would have thought the government might have taken the hint from an eight-justice majority in Pereira that "notice of appeal" means what it -- what it seems to mean." If that's not enough of a burn for you, he went on to say: "The government -- the government, Mr. Yang, doesn't have to argue every -- every possible jot and tittle of -- of a statute. It--it can--it--it has discretion here. It's just interesting to me that it's chosen to exercise it the way it has." SNAP!

So it is perhaps no surprise that Justice Gorsuch is the author of the court's Niz-Chavez decision today. His opinion was joined by Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett. Justice Kavanaugh dissented with Chief Justice Roberts and Justice Alito joining that dissent.

It's not a long opinion. Just 16 pages with those huge SCOTUS margins.

Let's languish for a moment in the opening paragraph:

Anyone who has applied for a passport, filed for Social Security benefits, or sought a license understands the government’s affinity for forms. Make a mistake or skip a page? Go back and try again, sometimes with a penalty for the trouble. But it turns out the federal government finds some of its forms frustrating too. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–546, requires the government to serve “a notice to appear” on individuals it wishes to remove from this country. At first blush, a notice to appear might seem to be just that—a single document containing all the information an individual needs to know about his removal hearing. But, the government says, supplying so much information in a single form is too taxing. It needs more flexibility, allowing its officials to provide information in separate mailings (as many as they wish) over time (as long as they find convenient). The question for us is whether the law Congress adopted tolerates the government’s preferred practice.

The meat of the opinion walks a steady path through statutory interpretation, concluding, as I said above, that a noncitizen in removal proceedings is entitled to a SINGLE notice to appear that contains all the information required by statute.

The conclusion is just as powerful as the opening paragraph:

At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power. In this case, the law’s terms en- sure that, when the federal government seeks a procedural advantage against an individual, it will at least supply him with a single and reasonably comprehensive statement of the nature of the proceedings against him. If men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.


April 29, 2021 in Current Affairs | Permalink | Comments (0)

Breaking News: Supreme Court Finds for Noncitizen in Relief from Removal Case -- Niz-Chavez v. Garland


Official U.S. Supreme Court Photo

Today, the Supreme Court in Niz-Chavez v. Garland held that a notice to appear sufficient to trigger the “stop-time” rule for measuring the time for cancellation of removal relief must be a single document containing all the information about the noncitizen's removal hearing.  The case involved the application of the Court's 2018 decision in Pereira v. Sessions, which held that A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a notice to appear under the statute , and does not trigger the "stop-time rule."

Justice Gorsuch delivered the majority opinion.  Justices Thomas, Breyer, Sotomayor (who wrote for the Court in Pereira), Kagan, and Barrett.  Justice Kavanaugh filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.

As described by the syllabus to the opinion, the majority held that "[a] notice to appear sufficient to trigger the . . . stop-time rule is a single document containing all the information about an individual’s removal hearing . . . . "

In recapping he argument, Jayesh Rathod as spot on in predicting the outcome::

"By the end of the hour, four justices – Breyer, Gorsuch, Kagan and Sotomayor – had openly expressed skepticism about the government’s reading of the statute. Roberts and Barrett revealed less, but seemed persuaded that the government could sidestep this entire issue by modifying some agency practices. Although few of the justices invoked Pereira as controlling precedent, the court’s decision there – coupled with its seeming reluctance to indulge bureaucratic inefficiencies – could very well lead to another lopsided decision in favor of noncitizens."

Here is the SCOTUSBlog collection of materials and commentary on the case.

We will post analysis of the Court's decision as it becomes available.


UPDATE (April 30):  The title of Mark Joseph Stern's article in Slate ("Neil Gorsuch’s Persnickety Libertarianism Gave Immigrants a Win at the Supreme Court") offers a good hint of his analysis of the Court's decision in Niz-Chavez.  The punch line:

"On Thursday, Agusto Niz-Chavez received the benefit of the written word. He can now petition for the ability to remain in the United States with his three children, all American citizens. The decision may not be an earth-shaking victory for immigrants’ rights. But it vindicates a principle that has been badly damaged in recent years: Immigration officials can’t cheat non-citizens out of a right guaranteed to them by the plain language of the law."


Mark Stern for S


April 29, 2021 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Race, History, and Immigration Crimes by Eric Fish


Race, History, and Immigration Crimes by Eric Fish, Iowa Law Review, Forthcoming


The two most frequently charged federal crimes are immigration crimes: the misdemeanor of entering the United States without inspection, and the felony of reentering the United States after deportation. Federal prosecutors charge tens of thousands of people with these two crimes each year. In 2019, these two crimes comprised a majority of all federal criminal cases. About 99% of the defendants in these cases are nationals of Mexico or other Latin American countries.

These two crimes were enacted into law through the Undesirable Aliens Act of 1929. The legislative history of that Act reveals that its authors were motivated by pseudoscientific racism. They sought to preserve the purity of the white race by preventing Latin American immigrants from settling permanently in the United States. And they spoke forthrightly about this motive. They described Latin American immigrants as “mongrelized,” “peons,” “degraded,” and “mixed blood.” They held hearings where experts in eugenics testified about Latin Americans’ undesirable racial characteristics. They gave speeches about the need to protect American blood from contamination. They described Latin American immigration as a “great race question” concerning invasion by “people essentially different from us in character, in social position, and otherwise.”

This Article thoroughly documents the legislative history of the Undesirable Aliens Act of 1929. It relies on primary sources—speeches, legislative reports, testimony, statements in the congressional record, private correspondences, eugenicist scholarship, and other writings by the men who conceived and enacted the law. The Article shows that this history brings the law into conflict with the Constitution’s Equal Protection Clause. While the crimes of unlawful entry and reentry are racially neutral on their faces, the story of their enactment reveals explicit racial animus against Latin American immigrants. Consequently, they are unconstitutional under the framework established by the Supreme Court in Arlington Heights v. Metropolitan Housing Development Corp. The Article also considers whether these crimes can be defended under Congress’s broad power to enact immigration laws, and whether their pro forma 1952 reenactment purged them of racial animus.


April 29, 2021 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Department of Justice Ends Efforts to Defund "Sanctuary Cities"


The Trump administration battled "sanctuary cities," and litigation over its efforts to strip grant funding to such cities continued throughout President Trump's four years in office.

Sarah Betancourt for Law360 (and here) reports that the Biden U.S. Department of Justice withdrew a Trump-era policy that prevented so-called sanctuary cities a federal grant program, according to an internal memo shared with Law360 earlier this week. In the memo, U.S. Attorney General Merrick Garland said the agency was withdrawing a 2017 memo from former Attorney General Jeff Sessions that implemented an executive order declaring jurisdictions refusing to cooperate with Immigration and Customs Enforcement as ineligible for certain federal grants.


April 29, 2021 in Current Affairs | Permalink | Comments (0)

Biden Calls for Immigration Reform in Speech to Joint Session of Congress


In his speech to a joint session of Congress, President Biden renewed the call for immigration reform.   He voiced support for comprehensive immigration reform, or bills providing relief to farmworkers, DREAMers, and Temporary Protected Status (TPS) recipients.

Biden told lawmakers to pass the U.S. Ciotizenship Act that would create a pathway to citizenship for undocumented immigrants and a three-year track for TPS and DACA recipients.

"If you believe we need to secure the border, pass it because it has a lot of money for high-tech border security. If you believe in a pathway to citizenship, pass it. There are over 11 million undocumented folks. The vast majority are here overstaying visas. Pass it," Biden urged.  

The immigration section of President Biden's speech can be seen on teh video above.


If Congress doesn't pass the U.S. Citizenship Act of 2021, filed by California Democratic Rep. Linda Sanchez and New Jersey Sen. Bob Menendez, lawmakers should "at least pass what we all agree on," the president said.

April 29, 2021 in Current Affairs | Permalink | Comments (0)

Wednesday, April 28, 2021

DHS Secretary Mayorkas to Headline Second Day of UCLA Center for Immigration Law and Policy’s “100 Days” Conference

UCLA Law's Center for Immigration Law and Policy's conference, “Immigration Policy in the Biden Administration: The First 100 Days and Beyond,” continues in its second day on April 30. At noon, participants for this event will hear from the Honorable Alejandro Mayorkas, Secretary of the U.S. Department of Homeland Security.

The entire event is free and open to the public.

Register at


April 28, 2021 | Permalink | Comments (0)

From the Bookshelves: The Accidental History of the U.S. Immigration Courts War, Fear, and the Roots of Dysfunction by Alison Peck


The Accidental History of the U.S. Immigration Courts War, Fear, and the Roots of Dysfunction by Alison Peck (University of California Press, May 2021)

During the Trump administration, the immigration courts were decried as more politicized enforcement weapon than impartial tribunal. Yet few people are aware of a fundamental flaw in the system that has long pre-dated that administration: The immigration courts are not really “courts” at all but an office of the Department of Justice—the nation’s law enforcement agency.

This original and surprising diagnosis shows how paranoia sparked by World War II and the War on Terror drove the structure of the immigration courts. Focusing on previously unstudied decisions in the Roosevelt and Bush administrations, the narrative laid out in this book divulges both the human tragedy of our current immigration court system and the human crises that led to its creation. Moving the reader from understanding to action, Alison Peck offers a lens through which to evaluate contemporary bills and proposals to reform our immigration court system. Peck provides an accessible legal analysis of recent events to make the case for independent immigration courts, proposing that the courts be moved into an independent, Article I court system. As long as the immigration courts remain under the authority of the attorney general, the administration of immigration justice will remain a game of political football—with people’s very lives on the line.


April 28, 2021 in Books, Current Affairs | Permalink | Comments (0)

Film Screening: Welcome Strangers - TONIGHT

The Colorado Immigrant Rights Coalition (CIRC), RMIAN and AFSC will be screening the award-winning film Welcome Strangers, about people released from the Geo detention facility in Aurora, Colorado, and the organization that receives them, Casa de Paz. The screening will be followed by a panel discussion. 

The event will support the Colorado Immigrant Legal Defense Fund, a CIRC campaign to pass a Colorado state law to create a universal representation program for low-income people facing immigration proceedings in Colorado. 

Date: Wednesday, April 28, 2021

Time: 5:30 - 7pm MST


Facebook event here

Cost: free, donations welcome


April 28, 2021 in Current Affairs, Film & Television | Permalink | Comments (0)

Join a Conversation with Jose Antonio Vargas - TONIGHT

A Conversation with Jose Antonio Vargas | April 28, 2021, at 6pm: A collaboration with the Undocumented Student Support Office, Asian & Asian American Center, LGBT Resource Center, First-Generation and Low-Income Student Support Office, ALANA, Cornell DREAM Team, and HAVEN: The LGBTQ+ Student Union. To register for the event, please visit:

About Jose Antonio Vargas: A journalist for over a decade writing for some of the most prestigious news organizations in the country, Jose Antonio Vargas’ personal journey contends with some of the most fascinating stories he’s covered, living a double life since he was 16 years old. After being born and reared in the Philippines, his mother, wanting to give her son a better life, sent him to live with his grandparents in Silicon Valley in 1993.

Vargas loved his new homeland and immersed himself in American culture, spoke the language perfectly, studied hard in school and loved writing for the school paper.  However, at 16 years old when applying for his Learner’s permit at the DMV, he discovered his green card was a fake, which was later confirmed by his grandfather. Vargas then realized he needed to continue hiding his true identity to avoid deportation and be able to pursue his American dream – a successful career in journalism.

And succeed he did. Vargas wrote a widely circulated profile of Mark Zuckerberg for The New Yorker. He also served as a senior contributing editor at the Huffington Post, where he launched the Technology and College sections and created the Technology as Anthropology blog, which focuses on tech’s impact on people and how they behave. He covered the tech and video game culture, HIV/AIDS, and the 2008 presidential campaign for the Washington Post, and was part of the team that won a Pulitzer Prize for covering the 2007 massacre at Virginia Tech. His 2006 series on HIV/AIDS in Washington, D.C. inspired a feature-length documentary — The Other City — which he co-produced and wrote. The documentary premiered at the 2010 Tribeca Film Festival and aired on Showtime. Politico named him one of the 50 Politicos To Watch.

Today Vargas runs Define American, a non-profit organization that seeks to elevate the conversation around immigration. Watch Jose's Story here: 


Future screenings include The Undocumented Lawyer (May 2-8 2021, register



April 28, 2021 in Books, Current Affairs | Permalink | Comments (0)

DHS Announces New Guidance to Immigration Enforcement Actions In or Near Courthouse


A few years back in the days of President Trump, Jennifer Chacon wrote in "California v. DOJ on Immigration Enforcement," about the growing tension between states like California and Washington, where ICE officials have begun to regularly appear at courthouses to conduct immigration arrests. These arrests have triggered an exchange between the chief justices of the supreme courts of California and Washington on one hand, and Attorney General Jeff Sessions and Department of Homeland Security  Secretary Kelly on the other.

Today, the Biden administration announced a change in policy.  See DHS Announces New Guidance to Limit ICE and CBP Civil Enforcement Actions In or Near Courthouse:

"Secretary of Homeland Security Alejandro N. Mayorkas directed U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) to place new limits on civil immigration enforcement actions in or near courthouses.  Acting Director of ICE Tae Johnson and Acting CBP Commissioner Troy Miller have issued a memorandum to ICE and CBP personnel pertaining to the limited circumstances in which civil immigration enforcement actions may be carried out in or near a courthouse."

Click the announcement above for details.


April 28, 2021 in Current Affairs | Permalink | Comments (0)

Tuesday, April 27, 2021

Susan Gzesh @ Just Security -- What the US Owes Central American Refugees


Over at Just Security, immprof Susan Gzesh (U. Chicago) asks Why Must Central American Asylum Seekers Risk Their Lives to Reach the US? There is an Alternative.

Gzesh starts with a point that, she notes, may surprise Americans: "almost no Guatemalans, Hondurans, or Salvadorans have ever been welcomed to the United States through [the United States Refugee Admissions Program or] USRAP."

Gzesh explains the refugee admission numbers and the geographic allocation of them, noting the scant "Latin America" figures have largely gone to Cubans. She highlights how Cold War politics have kept Central Americans out of the USRAP process.

Gzesh wants Central Americans to have access to the USRAP, as well as a "meaningful opportunity to apply for asylum at the U.S. border or in the interior." After all, she notes, "The U.S. bears a great deal of responsibility for the conditions of poverty, violence, and failures of the rule of law that drive asylum seekers north from Guatemala, El Salvador, and Honduras, as history will attest."


April 27, 2021 in Current Affairs | Permalink | Comments (0)

ICE Director Gonzalez nominated by President Biden


The White House announced that President Biden’s pick for ICE director is Harris County, Texas Sheriff Ed Gonzalez.

Gonzalez has a long career in law enforcement officer.  He has been a critic of Trump's ICE agency directives, such as the mass raids without prioritization of targets, and is known for transforming the culture of local cooperation in the sheriff’s office in the Houston metropolitan area from zealous immigration enforcement to more restrained partnership.

For example, Gonzalez withdrew his department from federal programs that deputize local law enforcement to make immigration related arrests out of concern that these operations “silence witnesses & victims” by making immigrants afraid to report crimes. He has also opposed family separation and supported due process for asylum seekers.

“I do not support #ICERaids that threaten to deport millions of undocumented immigrants, the vast majority of whom do not represent a threat to the U.S.” Gonzalez said in a tweet in July 2019.

Houston media are applauding the appointment and other appointments to national security positions that were also announced. The ICE Director requires Senate confirmation.


April 27, 2021 in Current Affairs | Permalink | Comments (0)

Supreme Court to Hear Arguments in Criminal Re-Entry Case


Official Photo of Supreme Court website

Later today, the Supreme Court hears oral arguments in United States v. Palomar-Santiago. Ingrid Eagly blogged about the case when the Court granted certiorari,

In her preview of the case for SCOTUSBlog, Jennifer Koh describes the issue before the Court as follows:

"Non-U.S. citizens who are deported and later return to the United States can be prosecuted for criminal re-entry. In order for federal prosecutors to sustain a charge for criminal re-entry under 8 U.S.C. § 1326, they must prove the existence of a prior removal order adjudicated by a federal immigration agency. But if the earlier removal order is invalid on legal grounds, then how can the noncitizen use that fact to defend against the criminal re-entry prosecution?"

Koh notes that, "an amicus brief [details] the explicit racial animus that led to the initial enactment and continued re-enactment of the re-entry statute. They urge the court to construe the statute in favor of Palomar-Santiago in light of racial insubordination concerns."  The remarkable Brief for Professors Kelly Lytle Hernandez, Mae Ngai, and Ingrid Eagly as Amici Curiae Supporting Respondent boldly contends in an argument heading that "I. RACIAL ANIMUS INFECTS THE ORIGINS OF 8 U.S.C. 1326" and elaborates as follows:

"To claim that the Undesirable Aliens Act of 1929 was founded in anything but deep-seated racial animus is to ignore the words spoken on the Congressional floor in the 1920s that led to its passage. The congressional debates made clear that legislators saw Mexican immigrants as a “social problem” to be controlled because they were a threat to white hegemony. This perceived threat was the animating motivation behind the eventual passage of the Act and, in particular, the criminal entry and reentry provisions."

Ultimately, Koh suggests that the decision in the case may have dramatic impacts on criminalizing immigration:  "Ultimately, the limits of the government’s authority to criminalize migration and the legitimacy of the administrative immigration system appear to be at stake."


UPDATE (APRIL 29):  Jennifer Koh for SCOTUSBlog recaps the oral arguments.  Her conclusion:

"It is unclear how the court is leaning. Justices Neil Gorsuch and Brett Kavanaugh asked no questions of either party. Justices on differing sides of the court’s political aisle both expressed sympathy for Palomar-Santiago and conveyed a measure of skepticism over the implications of the substantive invalidity of the removal order. Although an amicus brief from several immigration law scholars detailed how racial animus motivated the enactment and continuation of the re-entry statute, racial justice concerns did not arise at all. The decision will likely turn on how a majority of the justices view the significance of the validity of the prior removal order, the influence of constitutional norms on the court’s reading of the statute, and the court’s assessment of the extent to which administrative remedies were available to Palomar-Santiago."

C-SPAN provides an audio of the argument hereHere is the transcript.


April 27, 2021 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Conservative Progressivism in Immigrant Habeas Court: Why Boumediene v. Bush is the Baseline Constitutional Minimum by Joshua J. Schroeder

Conservative Progressivism in Immigrant Habeas Court: Why Boumediene v. Bush is the Baseline Constitutional Minimum, Joshua J. Schroeder, NYU Review of Law & Social Change (2021).  DOWNLOAD THIS ARTICLE AS A PDF


This article opens with a presentation of the six baseline holdings of Boumediene v. Bush as an expression of the basic constitutional minimum required under the Suspension Clause for all habeas cases. Then it describes the Circuit split that gave rise to DHS v. Thuraissigiam, which distinguished Boumediene according to the Court’s Conservative Progressive ideology. In Thuraissigiam, this ideology was symbolized by Landon v. Plasencia that favored Mathews v. Eldridge post-racial balancing tests to real justice.

Then this article exposes the reasons why Thuraissigiam should be distinguished in all future cases, as Justice Sotomayor contended, according to its highly individualized, narrow set of circumstances. For as Sotomayor wrote in dissent, Thuraissigiam is “nothing short of a self-imposed injury to the Judiciary, to the separation of powers, and to the values embodied in the promise of the Great Writ.” As such, its rationale should not be followed or repeated, as it may soon fall into the same kind of disrepute as cases like Korematsu, Plessy, andBuck v. Bell.

In an unrelated matter USAID v. Alliance for Open Society, the Court attempted to rewrite the holdings of Boumediene as the opposite of what they were sub silentio. The Court should not be allowed to apply Boumediene as if it held the opposite of what it actually held. So fundamental is the holding of Boumediene to basic liberty in America that if the Court fails to rediscover the baseline holdings of Boumediene for whatever reason, it is possible the nation could founder.

This article concludes that the legal community should resist the recent changes the Court made to immigrant habeas corpus. If the Great Writ can be suspended by the government without a Declaration of War or an actual invasion on U.S. soil, then the U.S. Constitution is overridden. The legitimacy of the nation is at stake and the legal community should not falter in their duty to uphold the U.S. Constitution as a matter of loyalty and integrity regardless of how those in power misbehave or embarrass themselves by misrepresenting Boumediene’s six holdings.


April 27, 2021 in Current Affairs | Permalink | Comments (0)