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Prof. Geoffrey Hoffman, Sept. 19, 2021
"Recently, district court decisions have charted a bold new course for constitutional claims in the context of immigration-related federal court litigation. Although people have made claims for years, emanating for example from equal protection, the first amendment, the fourth amendment, and due process, this latest trend is something new and exciting. It can be described as “large-scale,” or a systemic indictment of the rules, policies, and practices of the immigration system writ large. We are at a crucial juncture. This is not par for the course but a new direction for the federal courts. Below I discuss the evidence for this new and important trend.
First, consider Chief District Judge Miranda Du’s groundbreaking decision in US v. Carillo-Lopez, a 1326 “illegal reentry” case. Most of the time to fight these cases, the defendant’s options are severely limited. Under the statute a defense to prosecution may involve some sort of attack on the underlying prior order of removal or deportation. See 8 USC 1326(d). Unfortunately to succeed the immigrant has to prove they exhausted all previous administrative remedies, they were deprived of judicial review, and that the order was fundamentally unfair. In the Carillo-Lopez case, a different approach was used ... and successfully!
Judge Du’s 43 page opinion held that the entire statute, 8 USC 1326 not only had a disparate impact, but was itself racially motivated. Most importantly, the 1952 act was found to be motivated by discriminatory intent. That racial animus motivated prior immigration acts of Congress should be clear to all and very well-documented. But the government has often relied on the 1952 act as cleansing the law of its discriminatory historical predecessors. Judge Du, relying on contemporaneous historical evidence, and expert testimony, and the veto at the time even by President Truman, who recognized the injustice and “inhumane aspects of our immigration procedures.” See p. 20 of the Judge’s Order. By dismissing the indictment against the defendant, Judge Du has indicted the immigration system and its racist origins in a moving, well-reasoned judicial opinion of great importance.
Consider also a second instance of this systemic movement, where Constitutional protections were seriously considered and not short-shrifted, in support of asylum seekers. The second example is Al Otro Lado, et al v. Mayorkas, in which District Judge Bashant in California addresses the constitutionality of systematically denying asylum seekers access to the asylum process at ports of entry (“POEs”) along the U.S.-Mexico border. In that case, the judge granted plaintiffs’ motion for summary judgment on the following grounds: the practices of “metering” at the border violated the APA, sections 706(1) and (2), the Fifth Amendment’s Due Process Clause, as well as the Alien Tort Statute (28 USC 1350). The judge left open for further briefing what remedies to apply given the violation of APA, and also the effect of Title 42 (the statute allowing for the turning away of hundreds of thousands under the rationale of public health and the supposed threat of COVID-19 from migrants).
Title 42 is the subject of my third example. Although not yet a final decision, the District Court in Huisha-Huisha v. Mayorkas examined the claims of asylum seeker family units who were summarily returned without any judicial or administrative recourse. The court granted injunctive relief and certified the class recognizing the importance of immigrants’ rights and system-wide injustice. Plaintiffs brought their action under the APA, and other public health-related statutory authority, including the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), 8 U.S.C. § 1231 note; and the Public Health Service Act of 1944, 42 U.S.C § 201, et seq. Importantly, Judge Sullivan from the D.C. District Court granted certification and recognized that “[t]he public’s interest in providing due process for non-citizens to ensure that they are not removed to a country where they will be persecuted is an extremely weighty one.” Id. at pp. 52-53 (citing Devitri v. Cronen, 289 F. Supp. 3d 287, 297 (D. Mass. 2018).
A couple of further points to make about these new and exemplary decisions. They stand in stark contrast to the Supreme Court’s glaring 5-4 decision recently allowing for the reinstatement of MPP. The Supreme Court has not been protective of asylum seekers’ rights (not just its treatment of MPP) and the lower courts have had to step in. This process of lower courts’ stepping in is one which will intensify a “race to the courthouse” approach and unfortunately degrades the Supreme Court’s claim to both relevance and legitimacy. Litigants on both sides of the issue - think of Texas and others who for example have found sympathetic judges through their forum shopping in the states’ attacks on Biden’s priorities among other issues - will now be motivated to find protection from trial judges. The district courts have shown they are willing to listen and willing to act - both with sensitivity to the constitutional rights of immigrants and also in must be remembered in favor of states’ rights claims against the rights of immigrants.
The parallel that can be drawn to the abortion issue is also worthy of mention. Just as the MPP decision was 5-4 and along party lines, the Supreme Court allowed the new Texas law on abortion to proceed. In particular in the Whole Woman’s Health case, the majority noted, defensively, “this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.” The pronouncement abdicates responsibility for any Constitutional inquiry and examination by the high court. The inquiry now has to be done at the District Court level, but in the meantime clearly unconstitutional legislation and policies are able to proceed unencumbered. The parties are left to whatever remedies the lower courts, including circuit courts, can deliver. (To that point, think of the Fifth Circuit’s recent partial grant of relief in the prosecutorial discretion case, allowing - for the moment - President Biden’s enforcement priorities to be largely implemented with important limitations for mandatory detention and people with final orders).
Finally, this trend will not just be attributable to the judges and their willingness to grant relief when they see injustice. It is also, more importantly, attributable to advocates’ willingness to bring these constitutional and complex cases in the first place. It is a tall order indeed to bring a case arguing the entire system is corrupt and faulty. It will require, as we saw in the section 1326 context, expert assistance to help the court and other parties understand the racial motivations behind much of our immigration laws and policies. It also requires that we think more broadly about how to address the disastrous systemic-wide failures of our current systems. We need to think more broadly about how to challenge, for example, the utterly broken immigration court docketing system, with a million-plus backlog, as well as the USCIS asylum process administrative backlog, among other types of adjudication processes. Perhaps the next federal case to be brought in keeping with this trend recognizing the due process and other rights of immigrants will tackle these issues."
Geoffrey Hoffman, Clinical Professor, Director, Immigration Clinic, The University of Houston Law Center