- Eli Kantor
- Beverly Hills, California, United States
- Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; firstname.lastname@example.org. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com
Wednesday, June 29, 2016
June 27, 2016
A federal judge has approved class-action status for a lawsuit over whether poor children are entitled to lawyers during deportation hearings.
The order by U.S. District Judge Thomas Zilly in Seattle comes in a case brought by the American Civil Liberties Union and immigration advocates. It challenges the government’s failure to provide lawyers.
The plaintiffs in the case are now expected to represent thousands of children throughout the West who are under 18, can’t afford legal representation, and are potentially eligible for asylum or U.S. citizenship.
Matt Adams, the legal director of the Northwest Immigrant Rights Project, said in a statement Monday that under the ruling, the merits of the practice will be argued in a single case, and the government will have to defend a system that, in his words, “pits unrepresented children against trained federal prosecutors.”
For more information, go to: www.beverlyhillsimmigrationlaw.com
By Astrid Silva
June 24, 2016
Last week was the anniversary of the announcement of President Obama's Deferred Action for Childhood Arrivals program, or DACA, which gives unauthorized immigrants who were brought to the United States as children temporary protection from deportation. Thursday, Obama's attempt to expand that program to millions of immigrant parents and others was dealt a crushing setback.
A deadlocked Supreme Court let stand a lower court ruling on a suit brought by 26 states that blocked the program, called Deferred Action for Parents of Americans, or DAPA. The 4-4 ruling has left my parents and millions of families like mine in limbo -- yet again.
The morning that Obama announced DACA, on June 15, 2012, I received many calls from my friends on the East Coast, but there was one I won't forget. The caller asked me, "How old are you?" I told him I was 24. That's when my senator, Harry Reid, responded "You're in!" and told me that things were about to get a lot better. Little did I know how right he was. DACA changed my life forever.
I am able to drive and work and live without fear. Thanks to DACA, I have been able to go to college and devote my life to fighting for fair and comprehensive immigration reform for all.
Looking back on the anniversary of this program that changed my life, I am grateful that hundreds of thousands of young immigrants, like me, have been able to contribute to the country that we call home.
Yes, I am grateful, but I am also angry today -- angry for my family members, neighbors and loved ones. Despite qualifying for deferred deportations under President Obama's 2014 directives, they are being forced to remain in the shadows by a partisan lawsuit -- and now, in part, by a partisan effort against filling the vacancy on the Supreme Court.
To know that the hard-fought protections that I celebrated in 2012 are still not available to many whom I love motivates me every day.
DACA currently provides me with the ability to live without the constant fear of deportation. And the same could be true for millions of undocumented parents who would qualify for the DAPA program, if only Republican governors and attorneys general hadn't decided to stand in the way of that relief. We are mad, but we are not defeated.
Yes, the decision is a setback, but I know the immigrant community will continue the fight, and parents like mine, who immigrated to the United States, will fight to provide a better life and better home for their children.
Watching Donald Trump rise to prominence on the back of anti-immigrant stereotypes and xenophobic rhetoric, I am reminded just how much there is to fight for. While I am fortunate enough to have DACA, as long as hateful rhetoric and Donald Trump's brand of politics prevail, DACA and programs like it are in danger.
And it's not just Donald Trump who endangers these programs. Republican lawmakers in Congress have voted to end DACA and DAPA, and in doing so, destroy the protection from deportation for thousands of young people like me -- people who contribute to America's success.
This includes GOP Congressman Joe Heck from my home state of Nevada, who recently voted against DAPA. And Rep. Heck is running for Senate this cycle. So for me and countless other Nevadans, the stakes couldn't be higher.
This week, it may seem that the partisan politics and fear-mongering of 26 Republican governors and attorneys general prevailed, but it won't be enough. While I can't vote in this election, I will dedicate everything I can to making sure the victories we've won are protected and that Republican politicians and candidates threatening the immigrant community are held accountable in November and beyond.
The Nation (Opinion)
By Marisa Franco and Carlos Garcia
June 27, 2016
The Deportation Machine Obama Built for President Trump
When Barack Obama took office after his 2008 election, he inherited a budding deportation apparatus with its roots in the imagination of the “War on Terror” reactionaries who created the Office of Homeland Security in 2001 (later the Department of Homeland Security). When he leaves office he will leave behind to his successor the most sophisticated and well-funded human-expulsion machine in the history of the country.
In his first two years, newly appointed Director of the Office of Homeland Security Tom Ridge expanded the purview of his department to include an immigration enforcement plan that sought to achieve a “100% removal rate” of the undocumented population in the United States by seeing to the drafting of a document that came to shape the next 15 years, “ENDGAME Office of Detention and Removal Strategic Plan.” At the time, the Immigration and Naturalization Service (later broken up into the Citizenship and Immigration Services, Immigration and Customs Enforcement, and Customs and Border Protection) had approximately 26,000 agents and $4.9 billion. It was an enormous leap from when ICE was previously housed within Department of Justice but nothing like what it grew to be today.
Instead of reversing that architecture and disavowing that plan, President Obama turbocharged it. To pay for the ballooning enforcement-first approach, the budget for immigration enforcement grew 300 percent from the resources given at the time of its founding under Bush to $18 billion annually, more than all other federal law-enforcement agencies’ budget combined.
Before the end of his first term in office, the Obama administration had taken a small program developed in George W. Bush’s last days that aimed to turn local police into “force multipliers” and expanded it by about 3,600 percent. The Secure Communities program that DHS Secretary Jeh Charles Johnson described as causing “hostility to enforcement of immigration laws” existed in only 14 counties under Bush, but by the end of 2009 it spread to 88 counties. By 2013, it was active in all 3,181 US jurisdictions. It was eventually scrapped in 2014 and replaced with a rebranded Priority Enforcement Program.
As record numbers of people were being deported, an increasing number were also charged and channeled into federal prison before their expulsion. Within two years of coming into office, President Obama doubled the number of people being prosecuted for reentry by expanding Bush’s border-court system, Operation Streamline, which tries up to 70 people per day in a cattle line of sentences. The experiment went from three jurisdictions in 2008 to every single border sector except California by 2010. From the time of its invention in 2005 to just four years later in 2009, Streamline sent over 209,000 individuals to serve federal prison sentences for no reason other than crossing the border.
To carry out the plans laid out in ENDGAME, DHS would become the largest law-enforcement agency in the country, with more than 48,000 personnel dedicated to immigration enforcement alone.
At the same time, the Obama administration worked to craft an image of being smart as well as hard on enforcement. It has promoted concepts of prosecutorial discretion to narrow the targeting of its resources and established the temporary-relief program, deferred action, to further define who faces the threat of removal.
However, the implementation of such mechanisms and President Obama’s professed support for immigration-reform legislation does not alter the massive net the president has sewn to ensnare the undocumented community. By April 2014, immigration authorities scanned a total of 32 million sets of fingerprints, a number three times the undocumented population and equivalent to 10 percent of the entire US population. In fiscal year 2012, the height of its deportation quota pursuit, ICE processed 9 million prints, matching 436,000 submitted by local law enforcement, and issued detainers (a practice largely abandoned now due to constitutional concerns) for over a quarter-million of those it identified.
With such far-reaching capacity, whether deportation numbers spike or drop under an administration is a question of opening or closing the faucet on what has become a well-oiled removal pipeline. Whether it is flowing rapidly or cut to a trickle is a choice of the person in charge, and will be a choice presented to President Obama’s successor.
As Obama enters his final months, some say the record deportations he oversaw and the raids against refugees mothers and children already seal his legacy as the deporter-in-chief, while others had argued that a positive ruling to expand deferred action in the Supreme Court this summer could have somehow redeemed it.
However, a different measure will be comparing what he inherited to that which he’ll pass to whoever comes next.
With the prospect of a Trump presidency overseeing future DHS activity, the most important decision the president has on immigration is yet to come. Will Obama dismantle the astronomical capacity to capture immigrants he created during his presidency, or risk handing over the reigns of a dragnet at-the-ready to the man who’s promised to surpass him in using it?
By Toluse Olorunnipa
June 28, 2016
President Barack Obama said Donald Trump is a lifetime member of the “global elite” who is trying to stir up in the U.S. the kind of anti-immigrant sentiment that drove Britain to vote itself out of the European Union.
“There’s a xenophobia and anti-immigrant sentiment that’s flashing up not just in Great Britain but throughout Europe that has some parallels with what Mr. Trump has been trying to stir up here,” Obama said in an interview published Tuesday by NPR.
The president said that in his campaign for president, the real estate developer has sought to appeal to a sense of fear of newcomers and outsiders. He said the same strategy has been used by far-right leaders in Europe, including Marine Le Pen in France. Trump, he said, “embodies global elites” who are the subject of scorn in populist movements and has taken advantage of that position throughout his life.
“He’s hardly a legitimate spokesperson for a populist surge from working-class people on either side of the Atlantic,” Obama said.
Obama has vowed to campaign vigorously on behalf of presumptive Democratic nominee Hillary Clinton, who served as secretary of state in the president’s first term, and he has been stepping up the tempo of his criticism of Trump. He also threw his support behind U.K. Prime Minister David Cameron’s campaign to persuade Britons to reject withdrawal from the EU.
Trump is seeking to “tap into a fear that people may have about losing control and to offer some sort of big, nostalgic feelings about how we’ll make Britain great again, or we’ll make America great again,” Obama said. “The subtext for that is somehow that a bunch of foreigners and funny-looking people are coming in here and changing the basic character of the nation.”
Visiting Scotland the day after the Brexit vote, Trump compared the unexpected result with the upcoming U.S. election, saying Americans also wanted to take their country back.
“I really see a parallel between what is happening here and in the U.S.” Trump said, standing in front of his Turnberry golf course. In a statement after the vote, Trump said U.S. voters “will have the chance to re-declare their independence” in November.
During his yearlong campaign for the White House, Trump has proposed policies to ban Muslims from entering the U.S., build a border wall between the U.S. and Mexico and impose higher tariffs on countries involved in global trade. He recently has softened some of his stands, including modifying the blanket ban on Muslims to focus on immigrants from countries with links to terrorists and promising his immigration policies would have “heart.”
By Haley Sweetland Edwards and Zeke Miller
June 28, 2016
Donald Trump’s campaign is going out of its way to withhold clarity about the candidate’s shifting positions on immigration, as he appears to be softening his hardline stance on deporting people in the U.S. illegally and banning Muslim visitors.
In interviews this week, Trump suggested that he was no longer committed to forcing the mass deportation of roughly 11 million who have immigrated to the U.S. illegally, a position he has repeated in campaign speeches and debates since August 2015. He now says he would pursue an immigration policy that would focus only on deporting “bad dudes”—a policy that echoes the enforcement priorities of the Obama administration.
Trump also walked back his oft-repeated promise to impose “a total and complete shutdown of Muslims entering the United States,” a policy position enshrined in a December 2015 press release. On Saturday, Trump told reporters that he would not ban all Muslim immigrants, but only those from “terror countries.” “I don’t want people coming in—I don’t want people coming in from certain countries,” he told the Daily Mail. “I don’t want people coming in from the terror countries. You have terror countries. I don’t want them, unless they’re very, very strongly vetted.”
Trump did not specify which immigrants would qualify as “bad dudes,” and therefore be subject to deportation. He also would not name any nation that fell under the category of “terror countries,” saying only that “they’re pretty well decided. All you have to do is look.”
When CNN reported Monday that a new campaign immigration policy paper was forthcoming that would soften his stance on the Muslim ban, Trump spokeswoman Hope Hicks told TIME, “This is not accurate,” and declined to elaborate further. When the Associated Press asked Trump to clarify how he would identify muslims, Trump emailed a statement in response. “You figure it out!” it said in part.
If elected, Trump has promised to wage an “unpredictable” foreign policy, and much of his domestic agenda follows the same maxim. By staking out differing, sometimes opposing positions on the same issue, Trump keeps his opponents and even his own supporters guessing. The lack of clarity stems both from Trump’s own unfamiliarity with some complex policy issues—he fashions himself a big-picture and instinctual leader—but also represents an effort at deliberate ambiguity.
The latest immigration shifts suggest that the presumptive Republican presidential nominee is willing to embrace more centrist rhetoric before the general election. But it also marks the latest in a long line of instances in which Trump has dissembled, reversed himself, and walked back previous policy commitments, revealing an increasingly hard-to-pin-down platform just weeks ahead of the Republican convention in July. Trump appears to be betting that the confusion will allow him to appeal to all sides, while allowing him an out should the temperature of any one proposal get too hot.
In recent months, Trump has also appeared willing to negotiate on his long-standing plan, the cornerstone of his presidential run, to build a wall, paid for by Mexico, along the southern border of the U.S. In campaign speeches during the primary season, Trump often described the wall, popular among the Republican base, as bigger, taller, and more “beautiful” in each telling. But in recent interviews, it appears to be shrinking in size and grandeur, as polls show Republican voters in the general election are less enthusiastic about the wall than many primary voters. “Everything’s negotiable,” he told Fox News’ Sean Hannity in March. “I’ll be honest with you. You know, I’ll make the wall two feet shorter, or something.”
Trump’s dissembling on immigration, which has been one of the most solid planks of his platform, reflects a broader trend in his campaign in which he has repeatedly committed to a policy and then, in the matter of weeks or even hours, distanced himself from that it, while arguing that he has not, in fact, shifted positions. On March 3, for example, Trump embraced the idea of forcing U.S. military officers to employ torture methods, like waterboarding, that are widely seen as violating international treaties, and he repeated his position that “torture works.” “We should go for waterboarding and we should go tougher than waterboarding,” he said.
Then, a day later, on March 4, he released a statement saying that he would not, in fact, ask military officers to break international laws of war, but simultaneously appeared to remain committed to his previous statements. “I’m in total support of waterboarding. It has to be within the law, but I have to expand the law,” he said. “I’ll work on it with the generals.”
Trump performed a similar two-step after promising to authorize the military to “take out” family members of terrorists. “We’re fighting a very politically correct war,” he said in December 2015. “And the other thing is with the terrorists, you have to take out their families. They, they care about their lives. Don’t kid yourself. But they say they don’t care about their lives. You have to take out their families.” Three months later, in an interview on CNN, he said he didn’t mean that the military would kill terrorists’ families—only that he would “go after them.”
Trump’s policy platform again changed over the issue of abortion, when he suggested in an MSNBC town hall event on March 30 that women who get abortions should be subject to “some sort of punishment.” Hours later, he released a statement reversing himself: only the doctor who performs an abortion should be subject to punishment, he wrote, not the woman herself. But then he added that his “position has not changed.”
It’s common for politicians to change their rhetoric between the blustery primary season and the more staid and centrist general election. “Pivoting” from more radical policies to more inclusive ones is a tried-and-true move in the dark arts of politics. But most of Trump’s shape-shifting policy positions aren’t exactly “pivots.” Trump doesn’t move between positions on a linear spectrum so much he layers different responses atop on another, embracing a vast pallet of colorful language. The result is a muddled canvas of opinions, where so many competing colors are represented that both supporters and the campaign itself can point out whichever shade fits the mood of the moment.
The problem is that, less than three weeks before the Republican National Convention in Cleveland, Ohio, many voters aren’t certain where their presumptive nominee stands on everything from immigration and foreign policy to trade and the national debt. Even many Republican party leaders have been left uncertain about how to interpret the nominee’s latest terms of art.
June 28, 2016
The Supreme Court agreed Tuesday to referee a dispute about an odd piece of U.S. citizenship law that treats men and women differently.
The justices said they will hear a case about a law that applies only to children born outside the U.S. to one parent who is an American and one who is not. The law makes it easier for children whose mother is a citizen to become citizens themselves. Even after reform legislation in 1986, children of American fathers face higher hurdles claiming citizenship for themselves.
The federal appeals court in New York struck down the law in the case of Luis Ramon Morales-Santana. He challenged the law and asserted he is a U.S. citizen after U.S. authorities sought to deport him after convictions for robbery and attempted murder.
Morales-Santana is the son a of a Dominican mother and an American father, who left Puerto Rico for the Dominican Republic 20 days before his 19th birthday. For people born before 1986 to parents who are not married, their U.S. citizen fathers had to have lived in the U.S. for 10 years, at least five of them after the age of 14. Morales-Santana's father missed meeting the second part of that requirement by 20 days.
American mothers need only have lived in the U.S. continuously for a year before the birth of a child.
Changes to immigration law made in 1986 reduced the total residency time for fathers to five years, only two of which had to be after the age of 14.
By contrast, a child born in the United States, regardless of the parents' nationality, is a U.S. citizen, as is a child born abroad to two American citizens if one of them has ever lived in the United States.
The justices attempted to answer this question in 2011, but divided 4-4 with Justice Elena Kagan out of the case because she worked on while serving in the Justice Department. This time around, the case will again be heard by eight justices, but with Kagan taking part.
The case, Lynch v. Morales-Santana, 15-1191, will be argued in the fall.
June 28, 2016
The Supreme Court on Tuesday agreed to decide whether gender inequity in U.S. immigration law over granting citizenship to children born abroad to unwed American-citizen parents - favoring mothers over fathers - violates the U.S. Constitution.
The case involves a convicted felon from the Dominican Republic named Luis Morales-Santana, who was denied U.S. citizenship even though his father was a citizen. It marks the second time the high court has taken up the issue. In 2011, it split 4-4 in a similar case, leaving the matter unresolved.
In July 2015, the 2nd U.S. Circuit Court of Appeals in New York sided with Morales-Santana and struck down the law at issue, saying it applied "impermissible stereotyping" in imposing a tougher burden on fathers. The U.S. Justice Department asked the high court to take the case.
The law requires unwed fathers who are U.S. citizens to spend at least five years living in the United States - a 2012 amendment reduced it from 10 years - before they can confer citizenship to a child born abroad, out of wedlock and to a partner who is not a U.S. citizen.
For unwed U.S. mothers in the same situation, the requirement is only one year.
Morales-Santana, 54, was convicted of several offenses in 1995, including two counts of robbery and four counts of attempted murder. The U.S. government has sought to deport him since 2000.
Morales-Santana's deceased father was an American citizen, while his mother was not. His father failed to meet the law's requirements by 20 days, according to Morales-Santana. He has lived legally in the United States since 1975.
His court-appointed lawyers argued that the law's disparate treatment of mothers and fathers violated the U.S. Constitution's equal protection principle.
In the earlier case, Justice Elena Kagan recused herself, likely due to her previous job as a senior Justice Department lawyer before she was appointed to the court in 2010.
The court will hear oral arguments and issue a ruling in its next term, which begins in October and ends in June 2017.
June 29, 2016
The leaders of North America confront a rising tide of economic protectionism and nationalism as they hold a summit Wednesday in the Canadian capital.
Canadian Prime Minister Justin Trudeau for the first time is hosting U.S. President Barack Obama and Mexican President Enrique Pena Nieto in Ottawa for the North American leaders' summit. Obama will also address the Canadian Parliament.
The meeting comes one day after presumptive Republican presidential nominee Donald Trump in the United States blamed globalization for the loss of millions of manufacturing jobs, and he threatened to extricate the U.S. from the 2-decade-old North American Free Trade Agreement. Trump also vowed to withdraw from the Trans-Pacific Partnership, an agreement among 12 Pacific Rim nations that has yet to take effect, if he were elected president. And it comes less than a week after Britain voted to exit the European Union.
Canadian International Trade Minister Chrystia Freeland, chair of the Canada-U.S. cabinet committee, noted that the meeting of the three pro -trade leaders comes at an important moment.
"This is a time when a lot of leaders in the world are talking about building walls," Freeland said in an interview with The Associated Press. "What you are going to hear from the leaders of Canada, the United States and Mexico is that we are a continent and we believe in building bridges. We really believe in the open society. Those are core Canadian values, open to immigration, open to visitors and open to trade." Trump has also advocated building a wall along the U.S.-Mexico border.
Trudeau pointed to the North American example of economic integration on Tuesday and warned of the risks of protectionism and nationalism.
"Better collaboration, better partnerships are a path to prosperity," Trudeau said. "And that's a compelling example that we want to showcase at a time where, unfortunately, people are prone to turning inwards which will unfortunately be at the cost of economic growth and their own success."
Trudeau and Pena Nieto announced measures to reduce barriers during the Mexican leader's state visit to Canada ahead of the summit. Trudeau said Canada will lift visa requirements for Mexican visitors as of December 2016, while Pena Nieto agreed to open Mexican markets to Canadian beef.
The deadly attack at Istanbul's Ataturk airport on the eve of the summit also adds urgency to discussions on how the three nations can collectively enhance security.
Efforts to curb global warming will also be a big part of the summit agenda. White House officials said the three leaders will pledge to rely on renewable energy to generate 50 percent of North America's electrical power by 2025 and Mexico will also join the United States and Canada in tackling methane emissions.
White House spokesman Josh Earnest said Tuesday that he anticipates Britain's vote to leave the EU will come up in the leaders' discussions, but "I don't anticipate that it will be the focus of their conversations."
He said the major difference was that the North American countries focused on trade, while the EU also moved to establish a common currency, the euro.
"The countries of North America have pursued a different strategy and one that has worked well for us," Earnest said. "It is a strategy that has enhanced the economies of all our countries. It's enhanced the national security of all our countries, and it certainly has made North America the most successful continent in the world."
By David Rogers
June 28, 2016
A landmark child migrant case comes before the U.S. 9th Circuit Court of Appeals next week in Seattle, where a three judge panel will hear oral arguments as to the right of juveniles to an attorney in deportation proceedings.
The stakes are far-reaching for thousands of children from Central America. And the case illustrates the flip side of President Barack Obama’s much more publicized battles with Congress and the courts over immigration policy.
Indeed, there’s strong evidence that the White House made a calculated decision in 2014 to sacrifice the rights of the children in hopes of saving Obama’s larger plan using his executive powers to shelter millions of migrants already in the U.S.
The midterm elections were just months away, and fearful of a backlash after the surge in border crossings that spring and summer, the administration directed the courts to greatly accelerate the pace of arraignments for the children — with or without defense counsel. Many judges saw this as a green light to clear their dockets by simply issuing removal orders on the spot. And in the first 13 months, nearly 2,800 child migrants received deportation orders after being afforded only a single hearing and no defense counsel.
As this was happening, Obama went ahead with his executive order as planned after the 2014 elections. But the White House’s gamble proved no more successful, as witnessed last week when the Supreme Court killed the president’s hopes for this legacy achievement.
But as the dust settles on that fight, the collateral damage to the child migrants—hundreds of whom were 14 or younger — remains very real.
This elevates the importance of the ongoing 9th Circuit battle, where a series of recent developments have again raised the question of whether some settlement can be reached between the Justice Department and advocates for the children.
The underlying case arises from a federal lawsuit brought against then-Attorney General Eric Holder in July 2014 by the Northwest Immigrant Rights Project and the American Civil Liberties Union.
The fact that Holder was the first named defendant was not without irony since he had been very outspoken about the need for changes to provide better counsel for the children. Nonetheless, government attorneys under his watch and current Attorney General Loretta Lynch have taken a surprisingly hard-boiled approach, aggressively defending the fairness of the current system and downplaying the legal harm to the children.
In its defense, the administration argues that it is sympathetic with the children’s plight but must walk a tightrope, where it can’t afford to capitulate in the courts and then find Congress won’t fund the required lawyers.
Nonetheless, the repeated deference to Congress is striking given Obama’s robust use of his executive powers elsewhere. And there’s mounting frustration with what appear to be delaying tactics by Justice — even as the deportation orders continue for the children.
“I am shocked that the administration is continuing to press its policy of deporting children without legal representation,” said Ahilan Arulanantham, a lead attorney for the ACLU. “I would never have guessed the Obama administration would so vigorously defend this atrocious policy for two years.”
The central question is what constitutes due process for such young defendants matched against government lawyers in a deportation hearing.
Federal immigration statutes promise a “reasonable opportunity” for each defendant to present evidence and cross-examine witnesses brought by the government. Advocates for the children argue that without legal counsel, this standard can’t be met. And in the case of young children who can’t speak English, the hearings become a mockery of the due process requirements set out in the Fifth Amendment.
Justice counters that the situation has improved significantly since 2014 as the pace of the arraignments has slowed and more lawyers have been found for the children. Moreover, the government argues that the proper avenue for appeal of any deportation order is through the existing administrative system — not the courts.
But here the administration has run up against U.S. District Court Judge Thomas Zilly, an 81-year-old Ronald Reagan appointee who has presided since the case was first filed in Seattle. Ever cautious, Zilly gives the impression of a man very reluctant to be drawn into the national fray but also a veteran jurist who can’t bring himself to wash his hands and turn away.
“Hasn’t the law and even Congress recognized that children are different and that they perhaps have different rights?” he asked Justice in one exchange. And when the government asked Zilly to dismiss the case outright for lack of jurisdiction, he refused, saying the issues were too vital and deserve “an answer.”
“The Court is of the opinion the due process question plaintiffs have raised in this case is far too important to consign it, as defendants propose, to the perhaps perpetual loop of the administrative and judicial review process,” Zilly said. “A fundamental precept of due process is that individuals have a right to be heard ‘at a meaningful time and in a meaningful manner’ and before `being condemned to suffer grievous loss of any kind even though it may not involve the stigma and hardship of a criminal conviction.”
It is that decision by Zilly in April 2015 that the administration is appealing to the higher 9th Circuit bench, arguing that the district court overstepped its jurisdiction. But having allowed the government time to proceed with this appeal, Zilly has begun to pick up the pace in his own courtroom in anticipation of a full trial on the issues in the fall.
On Friday, he agreed to certify a broader class action beyond the half-dozen child plaintiffs named in the initial suit. And he has scheduled his own hearing for all the warring parties July 8 — the day after the Appeals Court arguments.
Among the issues then is a preliminary injunction request by the ACLU and NIRP that Zilly order the government to find legal representation for one of the teenage plaintiffs, who still lacks a lawyer and is backed up now against an August 17 deadline in the immigration courts.
In new court filings late Monday, Justice argues that this a manufactured crisis in that the juvenile, who left Guatemala when only 14, is clearly qualified for relief and under no threat of deportation. But Matt Adams, a Seattle-based attorney for NIRP, countered that the government ignores the fact that any such relief is contingent on the teenager first completing a complicated set of applications — an impossible task, Adams said, without an attorney.
How Zilly responds could be telling since he appears to be struggling with where to draw the line on the right-to-counsel issue. The judge appears most sympathetic to the very youngest migrants, under 14 years old. But in working through his class action certification, he also moved up the ladder to 16 years old and then all juveniles under 18.
With his jurisdiction already under challenge, Zilly confined the class action to cover only current and future cases within the Western states of the 9th Judicial Circuit. To qualify, a defendant must be unable to finance an attorney and potentially eligible for asylum in the U.S. Zilly preserved a potential subclass for the very youngest children under 14. But he has dropped prior draft language that would have made the class retroactive to include all cases since July 2014.
The administration takes some credit in moving the judge toward what it sees as a safer, narrower landing zone. But from the plaintiffs’ standpoint, getting past the class action certification was even more pivotal and should give them added leverage in any future negotiations.
In fact, the very size of the 9th Circuit — encompassing nine states including California and Arizona — will make it very difficult for Washington to ignore any future ruling in terms of national immigration policy.
“It’s a tremendous step forward,” said Adams. “And it’s going to force the government to have to defend a system. They can’t just try to distract and delay to keep this important issue from being resolved.”
Then again, the three-judge panel at the Appeals Court next week will have a lot to say. As a rule, the 9th Circuit is considered one of the more progressive, migrant-friendly arenas in the federal bench. But those named this week to hear the case appear to be a more centrist mix.
Included were two Republicans appointees—Andrew Kleinfeld and Milan Smith-- and one Democrat, Margaret McKeown.
June 28, 2016
Justice Antonin Scalia's sudden death transformed the Supreme Court's term, shifted power to its liberal wing and started a transition that will be greatly affected by who wins the presidency.
It was a term unusual in other ways, too. Justice Clarence Thomas broke a 10-year silence following his good friend's death to ask questions during an oral argument. Senate Republicans shunned any action on President Barack Obama's nominee to restore the court to its full nine-member strength. And four cases ended in 4-4 ties.
Major decisions underscoring abortion rights and constraining corruption prosecutions of public officials would have come out the same way had Scalia remained on the court. But his death led directly to an unexpected majority to uphold race-conscious college admissions policies. Another major goal of conservatives, to rein in the power of labor unions, was unattainable at the court without Scalia.
Chief Justice John Roberts was among several justices who said they spent more time searching for common ground after the loss of their larger-than-life colleague. The court produced a raft of decisions with little or no dissent that also did not result in major changes to the law. Justice Ruth Bader Ginsburg remarked that eight was not a good number for a group that is used to being nine.
"The Supreme Court term that ended yesterday was more liberal than many had predicted and stranger than anyone could have anticipated," Steven Shapiro, the American Civil Liberties Union's national legal director, said Tuesday.
Scalia's empty chair remained in the courtroom for a month beyond his death, through ceremonies at the court and the pageantry and solemnity of his funeral Mass at the Basilica of the National Shrine of the Immaculate Conception in Washington. When the court eventually removed the chair from the bench, it symbolized the loss of a fifth, majority-making vote for conservatives on cases that split the court along ideological lines.
Before late June, Justice Samuel Alito had only once in a decade on the court read his dissent from the bench, a practice generally reserved for important cases about which a justice feels strongly.
Alito announced his dissents in the affirmative action and abortion cases on the last two days the justices met to issue decisions. Both times, Justice Anthony Kennedy joined with the more liberal justices to form a majority.
Alito's upset with the outcome of cases continued even as the court issued a final set of orders on Tuesday. He wrote a stinging 15-page dissent to an order denying a religious liberty claim from pharmacists in Washington state who object to having to dispense emergency contraception.
"If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern," he wrote.
Operating with eight justices, the court was unable to decide four cases at all, including a test of Obama's plan to help millions of people living in the United States illegally and a challenge to the finances of public-sector labor unions. Both cases would have been decisive conservative victories, even as the tie over immigration effectively killed the president's plan.
In one other case, involving the Obama health care law, the justices produced a unanimous opinion that decided nothing. The case dealt with religious objections to the law's requirement that women covered by employer health plans have access to cost-free birth control. The justices ordered lower courts around the country to search for a compromise that would address the objections without impeding access to contraception.
"However you feel about the merits of a particular case, you should want the court to be able to do its job and declare what the law is, especially in cases of such profound national importance," said Elizabeth Wydra, president of the liberal Constitutional Accountability Center.
Barring the unexpected, the court still will be short-handed when the justices re-convene for the start of their new term on the first Monday in October. Depending on the election results, a new justice may not be confirmed until sometime next year.
The Senate's refusal to act on Obama's nomination of Judge Merrick Garland only heightens the role the presidential and congressional elections will play in determining the composition of the court. Scalia's seat is the first of several that probably will come open in the next few years. Ginsburg is 83, Kennedy will turn 80 next month and Justice Stephen Breyer's 78th birthday is in August. Thomas, who was 43 when he joined the court, will turn 70 during the next president's term.
Shapiro said the just-ended term might have marked "the end of an era." But at least until a ninth justice is confirmed, and as the term's biggest cases showed, Kennedy remains the court's pivotal vote. His majority opinion for a divided court in the University of Texas admissions case was the first time he'd voted to uphold an affirmative action plan in 28 years on the court.
Roberts announced the term's final case Monday, a unanimous decision overturning former Virginia Gov. Bob McDonnell's corruption conviction.
He offered a final nod to Scalia, noting that his opinion relied in part on an earlier opinion "authored by our late colleague, Justice Scalia."