9th Circuit strikes asylum bar rule, Supreme Court review awaits

World War II was followed by massive resettlement of refugees.  Millions were removed en masse as national boundaries were redrawn by the victorious powers at Yalta.  Some, like the Volga Germans were welcomed in their linguistic homeland, others like European Jews sought refuge and found themselves in a new conflict; in Eastern Europe collaborators with defeated powers and political enemies feared persecution at the hands of the victors.
From that experience the United States with the member states of the United Nations Organization helped birth the 1951 Convention on the Status of Refugees.   

Article 33(1) provides that 

“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom  would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 

In 1980 those principles were codified in our law.  The Asylum Act 8 U.S.C. 11158 provides that

To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

The Asylum Act also declares that 

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section...

The Trump Administration has relentlessly sought to undercut these  principles.  It has been challenged by immigrant aid organizations, joined by the United Nations High Commissioner for Refugees in its amicus brief, and twenty two state Attorneys General.  The administration has now received its most comprehensive rebuttal.  The United States Court of Appeals has declared unenforceable the November 2018 Proclamation of the President and simultaneous `emergency' Rule which declare that despite the plain words of 8 U.S.C. 1158 no one is eligible for asylum if they did not  enter at a "designated port of arrival".

Affirming the injunction issued by District Judge Jon S. Tigar  (N.D. Cal.) in East Bay Sanctuary v. Barr [950 F.3d 1242], the Ninth Circuit panel has  affirmed the preliminary injunction of both the point of entry asylum eligibility bar, and the Rule's provision that an asylum applicant's illegal entry would rebut her "credible fear" allegation.  Writing for the panel Judge Richard Paez described the Rule's impact as "staggering" and as a "categorical ban on immigrants who use a method of entry explicitly authorized by Congress".

What next?

 

The injunction, although it has not been stayed,  has no practical effect because the Trump administration has effectively barred asylum applicants by other means - the `third country bar rule' and the public charge rule.  In the first a Presidential Proclamation and Rule (issued without notice and comment)  made ineligible anyone entering on the southern border who did not seek and was not denied asylum in Mexico. The Supreme Court stayed a second order by Judge Tigar over a strong dissent by Justice Sonia Sotomayor.  Such a stay is highly unusual since it expresses a readiness to reject a thoroughly documented and developed record and reasoned opinion by a trial judge whose order was then under pending review by the Court of Appeals.  

Another anti-refugee rule - the `public charge' rule bars anyone deemed likely to apply at some point for government benefits such as Medicaid or food stamps.  In New York v. Department of Homeland Security, an action by New York and 22 other states was stayed by the Supreme Court, as was another action by the State of Illinois.  That stay  drew a strong rebuke from Sotomayor just eight days ago in another immigration related case Wolf v. Cook County.
 

Does a Catholic agency discriminate when it refuses to allow same sex couples to adopt?

OTHERWISE: Does a Catholic agency discriminate when it refuses to allow same sex couples to adopt?

Congressman Sean Patrick Maloney (D- Cold Spring NY) - a gay father of three - and conservative Notre Dame law prof Rick Garnett each discusses his take in light of the Supreme Court's decision to take on the issue of whether a Catholic adoption agency should be exempt from general anti-discrimination law.

Trump knocked back on asylum policies - POLITICO

Trump knocked back on asylum policies - POLITICOJudge Richard Paez wrote in his opinion in Innovation Law Lab, et al. v. Donald J. Trump that the asylum rule, whose scope he called “staggering,” violates the Immigration and Nationality Act.

by Jeremy B. White

A California appeals court has rejected two of the Trump administration’s efforts to curtail asylum.

The Ninth Circuit Court of Appeals sided with a coalition of immigrant legal services groups in ruling against a Trump administration rule barring asylum claims from people who cross the US-Mexico border without presenting themselves at an official port of entry.

Bivens Liability and Its Alternatives — Summary, Judgment

Chicago Law prof William Baude, former clerk to John Roberts regards with equanimity the  Supreme Court's decision in Hernandez v. Mesa.  There the court rejected a "Bivens" action against a border patrol officer who shot dead a fifteen year old Mexican boy on that country's side of the border.

But he raises the possibility that there might be a remedy in state law despite the immunity granted federal offices by the 1984 Westfall Act. - GWC

Bivens Liability and Its Alternatives — Summary, Judgment

by William Baude (U Chicago Law)

On Tuesday, the Supreme Court decided in Hernandez v. Mesa that there is no cause of action for damages if a federal border patrol agent unconstitutionally shoots somebody across the border. The Court had recognized a cause of action under the Fourth Amendment against federal law enforcement agents in a 1971 case called Bivens, and extended it in two subsequent cases, but it has rejected further Bivens claims in every Supreme Court Bivens case in my lifetime and that doesn’t seem likely to change. Two Justices, Thomas and Gorsuch, have called for Bivens to be overruled on the grounds that it lacks a formal or historical basis.

Justices Thomas and Gorsuch are right about that the lack of a formal and historical basis, but I worry about the broader picture. As Justice Thomas’s concurrence notes, it’s not like there was no remedy for unconstitutional conduct before Bivens. Rather, as Thomas writes:

From the ratification of the Bill of Rights until 1971, the Court did not create implied private actions for damages against federal officers alleged to have violated a citizen’s constitutional rights. Suits to recover such damages were generally brought under state law.

What Justice Thomas does not note is that it has become very hard to bring those suits under state law either. There is some debate about whether that difficulty is attributable to Congress’s 1984 enactment of the Westfall Act, various judicial decisions arguably misconstruing that act, or what (see this article by Vladeck and Vasquez), but I think at this point we’re entitled to wonder, if the Court is going to abolish the 20th century remedies for unconstitutional conduct, can we at least have the 19th century remedies back?

Normally the Court lacks the ability to take a big-picture view in these cases, since it has only the issue before it. But in Hernandez, the petitioner foresaw this problem and petitioned the Supreme Court to consider a second question — if there is no Bivens liability, then, he asked:

whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.

Trump should keep hands off courts - Philadelphia, Pennsylvania Bar Associations

OTHERWISE: Trump should keep hands off courts - Philadelphia, Pennsylvania Bar Associations

Hernandez v. Mesa: Supreme Court says border guard who shot a child faces no consequences - Vox

The United States Supreme Court is a graveyard for plaintiffs asserting anything other than property rights.
Samuel Alito is a master of beefing up the trivial distinction: all to achieve a consistent aim - deny a cause of action to the type of claimant with which he and his compatriots do not identify.  So last week they voted to hear a claim of violation of rights by the Catholic adoption agency in Philadelphia which was denied a contract because they refuse to conform to local law which requires they allow same sex couples to adopt orphaned or foster children.
But today the Court 5-4 found that allowing the bereaved parents of a 15 year old Mexican child to recover for the shooting death of the child by a U.S. government agent standing on the U.S. side of the border.  Separation of powers concerns drove the court's decision, it says.  Ian Millhiser reports.

With the demise of federal general common law, a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress, see id., at 286 (“private rights of action to enforce federal law must be created by Congress”), and no statute expressly creates a Bivens remedy. Justice Harlan’s Bivens concurrence argued that this power is inherent in the grant of federal question jurisdiction, see 403 U. S., at 396 (majority opinion); id., at 405 (opinion of Harlan, J.), but our later cases have demanded a clearer manifestation of congressional intent, see Abbasi, 582 U. S., at ___–___ (slip op., at 10–12). - Alito, J.

Hernandez v. Mesa: Supreme Court says border guard who shot a child faces no consequences - Vox

Hernández v. Mesa is a case about a horrific event.

Sergio Adrián Hernández Güereca, a 15-year-old Mexican boy, was with his friends near the US-Mexican border when one of those friends was detained by US Border Patrol agent Jesus Mesa. Hernández ran onto Mexican soil, and Mesa fired two shots at the boy — one of which struck him in the face and killed him.

Hernández and his family disagree about the events that led up to this shooting. The family says that Hernández and his friends were simply playing a game where they would run to the fence that separates the United States from Mexico, touch it, then run back to their own country’s soil. Mesa claims that Hernández and his friends threw rocks at him. (Significantly, the Justice Department has refused to take any action against Mesa.)

Regardless of who is telling the truth, the question in the Hernández case is whether Mesa is immune from a federal lawsuit even if he shot and killed Hernández in cold blood. The Supreme Court held, in a 5-4 decision along familiar partisan lines, that Mesa cannot be sued.

The case turns upon whether the Supreme Court’s decision in Bivens v. Six Unknown Named Agents (1971), which permitted federal lawsuits against law enforcement officers who violate the Constitution, has any real force in 2020. After Justice Samuel Alito’s opinion in Hernández, the answer to this question is a resounding “no.”

Alito’s opinion does not explicitly overrule Bivens, but it appears to be laying the groundwork for a future opinion that will eliminate Bivens’ protections against federal officers who violate the Constitution. Notably, Justice Clarence Thomas wrote a separate opinion in which he argues that “the time has come to consider discarding the Bivens doctrine altogether.”

Bivens v. Six Unknown Named Agents, briefly explained

The Constitution’s Bill of Rights places a number of restrictions on law enforcement, including the Fourth Amendment’s ban on “unreasonable searches and seizures.” But the Constitution is silent about whether an individual officer may be sued if they violate one of these restrictions. Although a federal law does permit suits against state law enforcement officers who violate “any rights, privileges, or immunities secured by the Constitution and laws,” there is no such statute that explicitly authorizes suits against federal agents.

Nevertheless, Bivens held that the right to sue federal law enforcement is implicit in the Constitution. “Power,” Justice William Brennan wrote for the Court in Bivens, “does not disappear like a magic gift when it is wrongfully used.” An officer who acts unlawfully “in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own.” And thus the Constitution must offer a remedy to victims of such rogue officers.

Bivens, in other words, rests on something comic book fans will recognize as the Spider-Man rule — with great power comes great responsibility. If the federal government gives someone a badge and a gun, and that person unconstitutionally abuses that power, then they may be held accountable for their actions and can be ordered by a court to compensate their victim.

But Bivens fell into disfavor not too long after it was decided, in large part because the Supreme Court took a sharp right turn.

“For almost 40 years,” Alito writes in Hernández, “we have consistently rebuffed requests to add to the claims allowed under Bivens.” When faced with a Bivens claim, the Court typically looks for reasons why the most recent case is “different in a meaningful way from previous Bivens cases decided by this Court.” If it is, the Court will dismiss the lawsuit if there are any “special factors counselling hesitation.”

Much of Alito’s opinion is a laundry list of reasons why the courts should hesitate to allow suits against border patrol agents involved in a cross-border shooting.

“The political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns,” Alito claims, and “a cross-border shooting is by definition an international incident.” Thus, it is better for these incidents to be resolved through international diplomacy, rather than through a lawsuit.

Similarly, “the conduct of agents positioned at the border has a clear and strong connection to national security.” These agents “detect, respond to, and interdict terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States.” Allowing suits against these agents risks “undermining border security.”

Alito’s opinion, in other words, rests on a kind of anti-Spider-Man rule. Border patrol agents are given great power so that they can use that power. And it is not typically the job of the courts to interfere with how those guards exercise such power — even when it results in the death of a child.

Bivens is probably in its final days

The striking thing about Alito’s opinion is the sheer amount of ink he spills presenting Bivens as an anomaly that’s since been rejected by a new line of decisions. Bivens suits are “a ‘disfavored’ judicial activity,” and the Court has even suggested that if its previous decisions applying a Bivens remedy were “decided today” that it is “doubtful we would have reached the same result.”

Alito also suggests that Bivens does not show sufficient “respect for the separation of powers.” According to his Hernández opinion, “when a court recognizes an implied claim for damages on the ground that doing so furthers the ‘purpose’ of the law, the court risks arrogating legislative power.” If individual plaintiffs are to be given the right to sue law enforcement agents for constitutional violations, that right must be given by Congress, and not the courts.

Setting aside the fact that there are court cases stretching back at least 200 years holding that government actors may be sued when they violate the law, Alito’s view of the separation of powers is debatable. The Supreme Court, after all, established very early in American history that “it is emphatically the duty of the Judicial Department to say what the law is,” and no one can reasonably question that the Fourth Amendment places limits on what law enforcement officers do with their weapons.

The question in cases like Bivens is whether the Fourth Amendment means anything — especially in cases where the government refuses to discipline an officer who steps out of line — or whether the right to be free from unlawful searches and seizures necessarily implies that there must be some way to enforce that right.

The Supreme Court’s decision in Hernández transforms the Bill of Rights into a paper tiger in many cases involving law enforcement overreach. And it foreshadows a future where Bivens is overruled in its entirety.

Baseball is back — here’s what you missed in the offseason

Sanctuary States, City Lose Appeal on Federal Grant Cuts

So much for state sovereignty.

Sanctuary States, City Lose Appeal on Federal Grant Cuts

MANHATTAN (CN) – Reversing a sweeping injunction, the Second Circuit gave the Justice Department a green light Wednesday to withhold funding from New York City and seven states in retaliation for their sanctuary policies on immigration.

“The case implicates several of the most divisive issues confronting our country and, consequently, filling daily news headlines: national immigration policy, the enforcement of immigration laws, the status of illegal aliens in this country, and the ability of states and localities to adopt policies on such matters contrary to, or at odds with, those of the federal government,” wrote U.S. Circuit Judge Reena Raggi, a George W. Bush appointee, on behalf of a unanimous three-judge panel.

The Massachusetts Legislature drew a packed crowd at the Statehouse in Boston on June 9, 2017, for a hearing by the Committee on Public Safety and Homeland Security on a bill that calls for sharp limits on cooperation between federal immigration officials and state and local law enforcement agencies. (AP Photo/Stephan Savoia)

Then-Attorney General Jeff Sessions announced the Justice Department’s clampdown on sanctuary jurisdictions nearly three years ago, saying cities and states that refuse to help federal agents detain undocumented immigrants at local jails would lose out on $385 million in justice assistance grants.

JAG grants, as they are known, are named for slain New York City police officer Eddie Byrne.

Seven states — New York, Connecticut, New Jersey, Washington, Massachusetts, Virginia, and Rhode Island — and New York City sued over the restrictions, winning a ruling some 15 months ago in Manhattan that forced the Justice Department to release the funding.

“This case is fundamentally about the separation of powers among the branches of our government and the interplay of dual sovereign authorities in our federalist system,” U.S. District Judge Edgardo Ramos wrote on Nov. 30, 2018.

The Second Circuit found that Ramos’s ruling “thoughtful” but ultimately wrong.

OTHERWISE: Supreme Court likely to hand Christian right a win over LGBTQ rights - Vox

Supreme Court likely to hand Christian right a win over LGBTQ rights - Vox

The Solicitor General and the Shadow Docket - Harvard Law Review

This essay by Stephen Vladeck (U Texas Law) provides the backup for Justice Sonia Sotomayor's recent dissent from the stay of an order blocking a particularly outrageous Trump Rule: barring admission to the US of anyone who might some day seek a public benefit.   Sotomayor accuses the Supreme Court of being a doormat for the Trump administration's  frequent requests to stay adverse orders below - a remedy infrequently granted until now when an aggressive administration meets a very sympathetic court. - gwc

The Solicitor General and the Shadow Docket - Harvard Law Review

by Stephen Vladeck November 2019

The Solicitor General’s special relationship to the Court is not one of privilege, but of duty — to respect and honor the principle of stare decisis, to exercise restraint in invoking the Court’s jurisdiction, and to be absolutely scrupulous in every representation made.

— Seth P. Waxman, Solicitor General of the U.S. (1997–2001)^1×

For almost as long as there has been a Solicitor General of the United States (150 years next June^2× ), there has been debate over the unique functions and obligations of the office.^3× It’s not just that the Solicitor General is one of the only federal officers who, by statute, must be “learned in the law.”^4× Besides the Vice President, the Solicitor General is the only federal officer with formal offices in multiple branches of the federal government — in both the main building of the Department of Justice and the Supreme Court.^5× And the Solicitor General does not just have a physical presence at the Supreme Court; the Court’s rules and traditions both formally and informally privilege the Solicitor General as the de facto head of the Court’s bar — and show special solicitude to the Solicitor General across a constellation of considerations.^6×

With these special privileges come special responsibilities. As Simon Sobeloff (Solicitor General from 1954 to 1956) put it, “[t]he Solicitor General is not a neutral, he is an advocate; but an advocate for a client whose business is not merely to prevail in the instant case. My client’s chief business is not to achieve victory, but to establish justice.”^7× The oft-repeated moniker that the Solicitor General is the “tenth Justice”^8× may well reflect the perception that the forty-eight holders of that office have generally lived up to that responsibility — or, at least, that the Court has acted as if they have.

Recently, that perception has come under unusually significant fire. Solicitor General Noel Francisco was accused of repeatedly misleading the Justices during and after oral argument in the travel ban case.^9× He was also heavily criticized for how he litigated a controversial dispute over access to abortions by minors in immigration detention.^10× Scholars from across the political spectrum have accused the government of “astounding” conduct in changing its litigating position in a dizzying array of high-profile cases (changes that the Solicitor General would, by tradition, have been involved in approving).^11× And critics have argued that the Office of the Solicitor General (OSG) under Solicitor General Francisco’s watch has filed an unprecedented number of requests for emergency or extraordinary relief from the Justices, asking the Court (1) to hear certain appeals before the lower courts have finished ruling; (2) to halt the effect of lower court rulings pending the Supreme Court’s review; or (3) to jump over the courts of appeals and directly issue writs of mandamus to rein in perceived abuses by different district courts.^12×

There is a veritable mountain of scholarship and popular commentary on the Solicitor General’s role and relationship with the Supreme Court.^13× But virtually none of it has addressed this last phenomenon, even as more attention is being paid to the Court’s “shadow docket,” that is, the significant volume of orders and summary decisions that the Court issues without full briefing and oral argument.^14× This Essay aims to fill that gap.

Part I briefly introduces the statutes, rules, and case law governing the three most common forms of emergency and extraordinary relief in the Supreme Court. Part II then summarizes the instances (through the end of September 2019) in which the Solicitor General has sought such relief since the beginning of the Trump Administration — and contrasts them with such requests from the Solicitors General who served during the eight-year tenures of Presidents George W. Bush and Barack Obama. As Part II explains, the data are conclusive: Solicitor General Francisco has indeed been far more aggressive in seeking to short-circuit the ordinary course of appellate litigation — on multiple occasions across a range of cases — than any of his immediate predecessors. To take one especially eye-opening statistic, in less than three years, the Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone).^15× During the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications — averaging one every other Term.^16×

OTHERWISE: Justices to take up case involving faith-based adoption agencies and same-sex couples - SCOTUSblog

OTHERWISE: Justices to take up case involving faith-based adoption agencies and same-sex couples - SCOTUSblog

As Trump Barricades the Border, Legal Immigration Is Beginning to Plunge - The New York Times

As Trump Barricades the Border, Legal Immigration Is Beginning to Plunge - The New York Times

by Zolan Kanno-Youngs

Feb. 24, 2020Updated 10:29 a.m. ET

WASHINGTON — President Trump’s immigration policies — like travel bans and visa restrictions or refugee caps and asylum changes — have begun to deliver on a longstanding goal: Legal immigration has fallen more than 11 percent and a steeper drop is looming.

While Mr. Trump highlights the construction of a border wall to stress his war on illegal immigration, it is through policy changes, not physical barriers, that his administration has been able to seal the United States. Two more measures were to take effect by Monday, an expansion of his travel ban and strict wealth tests on green card applicants.

“He’s really ticking off all the boxes. It’s kind of amazing,” said Sarah Pierce, a policy analyst with the Migration Policy Institute, a nonpartisan research group. “In an administration that’s been perceived to be haphazard, on immigration they’ve been extremely consistent and barreling forward.”

The number of people who obtained lawful permanent residence, besides refugees who entered the United States in previous years, declined to 940,877 in the 2018 fiscal year from 1,063,289 in the 2016 fiscal year, according to an analysis of government data by the National Foundation for American Policy. Four years ago, legal immigration was at its highest level since 2006, when 1,266,129 people obtained lawful permanent residence in the United States.