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- Judge Thomas J. Mulligan - U.S. Department of Justice Executive Office for Immigration Review (Personal Capacity)
On February 21, the Supreme Court heard argument in Hernandez v. Mesa. In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez’s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen.
The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity. The main questions for the Supreme Court to answer are: Does the Fourth Amendment apply? Should qualified immunity apply to the border patrol agent? And can Agent Mesa make a Bivens claim?
Steve Giaier of the House Committee on Homeland Security attended oral argument and shared his perceptions.
On January 21, President Trump signed an executive order “Protecting the nation from foreign terrorist entry into the United States.” The order suspended immigrant and nonimmigrant entry into the country by citizens of seven majority Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days. It also suspended refugee admission into the United States for 120 days, and barred entry of Syrian refugees until further notice. The stated order’s purpose was to “ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.”
The Washington State Attorney General filed a lawsuit against the order in District Court citing harm to Seattle residents. Judge James Robart in the Western District of Washington issued a restraining order on February 3 halting President Trump’s executive order nationwide. The Department of Justice appealed the restraining order to the Ninth Circuit Court of Appeals, which rejected the Justice Department’s appeal for an emergency stay.
David Bier of CATO and Andrew C. McCarthy of National Review, who have both written on the topic (see their pieces here and here respectively), joined activist Shireen Qudosi, Director of Muslim Matters with America Matters, to discuss the legality of the executive order in the second episode of our Executive Orders Teleforum Series.
On November 9, 2016, the Supreme Court heard oral argument in Lynch v. Morales-Santana. Morales-Santana’s father was born in Puerto Rico but acquired U.S. citizenship in 1917 under the Jones Act of Puerto Rico. Morales-Santana was born in 1962 in the Dominican Republic to his father and Dominican mother, who were unmarried at the time. In 1970, upon his parents’ marriage, he was statutorily “legitimated” and was admitted to the U.S. as a lawful permanent resident in 1976.
The Immigration and Nationality Act of 1952, which was in effect at the time of Morales-Santana’s birth, limits the ability of an unwed citizen father to confer citizenship on his child born abroad, where the child’s mother is not a citizen at the time of the child’s birth, more stringently than it limits the ability of a similarly situated unwed citizen mother to do the same.
In 2000, Morales-Santana was placed in removal proceedings after having been convicted of various felonies. An immigration judge denied his application for withholding of removal on the basis of derivative citizenship obtained through his father. He filed a motion to reopen in 2010, based on a violation of equal protection and newly obtained evidence relating to his father, but the Board of Immigration Appeals denied the motion. The U.S. Court of Appeals for the Second Circuit reversed the Board’s decision, however, and concluded that Morales-Santana was a citizen as of birth. The Attorney General of the United States then obtained a grant of certiorari from the Supreme Court.
The two questions now before the Supreme Court are: (1) whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.
To discuss the case, we have Elina Treyger, who is Assistant Professor of Law at the George Mason University Antonin Scalia Law School.
On June 23, 2016, the Supreme Court decided United States v. Texas. This case relates back to the Department of Homeland Security’s (DHS) 2012 Deferred Action for Childhood Arrivals (DACA) program, which set forth special criteria to direct how DHS should exercise prosecutorial discretion in enforcing federal immigration laws against certain young persons. In 2014, DHS issued a memo that then expanded eligibility under DACA and directed establishment of a similar program for the parents of DACA-eligible persons: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).
Twenty-six states sued in federal district court to prevent the DHS from implementing DAPA, arguing that DAPA violated the Administrative Procedure Act (APA) because it had not gone through a notice-and-comment process, and was moreover arbitrary and capricious. The states also argued that DAPA abrogated the President’s constitutional duty to “take Care that the Laws be faithfully executed.” The district court concluded that of the suing states, Texas had standing, and temporarily enjoined implementation of DAPA after determining that Texas had shown a substantial likelihood of success on its notice-and-comment claim. The U.S. Court of Appeals for the Fifth Circuit affirmed that ruling, and further held that the other states had standing and has shown a substantial likelihood of success on both the notice-and-comment and arbitrary and capricious components of their APA claims. The Fifth Circuit did not reach the Take Care clause claim.
The four questions before the Supreme Court in this case were: (1) whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the APA to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3--a question the Court itself directed the parties to brief.
An equally divided Supreme Court affirmed the judgment of the Fifth Circuit in a single sentence per curiam opinion, thereby leaving the district court’s injunction in place
To discuss the case, we have Josh Blackman, who is Assistant Professor of Law at South Texas College of Law.