Listen: Attorney Jonah Eaton '02 on Challenges to Immigrant Communities Under Trump
Listen: Attorney Jonah Eaton '02 on Challenges to Immigrant Communities under Trump
This spring, Jonah Eaton '02 gave a lecture, "Challenges to Immigrant Communities Under Trump." Eaton, an attorney and specialist in refugee and asylum law at Philadelphia’s Nationalities Services Center (NSC), draws on how anti-discrimination laws and Constitutional protections clash with longstanding judicial deference to the executive on matters of national security and immigration.
President Donald Trump campaigned on aggressively curtailing immigration to the U.S. and "securing" U.S. boarders by stopping the flow of immigrants. In the weeks since taking office, the new administration rapidly moved through a series of executive orders, which left the nation's airports in chaos, spurred national protests, and brought broad, although not universal, rebuke from the judiciary. In his talk, Eaton explores the legal underpinnings of the executive orders, how they violate the Constitution or federal statutes, and, most importantly, how future orders may survive legal challenge. Additionally, he discusses how these orders affected immigrants and refugees attempting to come to the United States.
Eaton specializes in refugee and asylum law and is the Nationalities Service Center's Philadelphia Partnership for Resilience (PPR) staff attorney, providing pro bono legal representation for victims of torture. In addition to his PPR work, Eaton represents immigrants in a wide range of legal issues before USCIS, Immigration Court, and U.S. District Court. He also co-teaches the Refugee Law and Policy class at the University of Pennsylvania Law School.
Prior to joining NSC, Eaton was a Bates Fellow at the United Nations High Commissioner for Refugees, Bureau for Europe in Brussels, Belgium. There, he worked on impact litigation before the European Court of Justice and litigation involving refugee rights in the European Union.
Eaton graduated with honors from Swarthmore College with a double major in political science and engineering. He earned his law degree from the University of Michigan Law School.
Audio Transcript
Speaker 1: Thanks so much for coming out. So today Jonah will be talking about basically the legal implications of Trump's recent immigration actions, and just to tell you guys a little bit about Jonah, he is a Swarth alum. He graduated with high honors in political science and also majored in engineering, and he received his JD at the University of Michigan law school. He also worked at the United Nations High Commissioner for Refugees in Belgium. He also built a boat over the course of four years, a 41-foot boat named [inaudible 00:00:39], so he's a man of many interests. Currently, he's an attorney at the Nationalities Services Center, which helps immigrants and refugees. So thank you so much, Jonah, for coming out. [inaudible 00:00:55]
Jonah: Thank you. This is my former roommate Pat, who lived in Willits third, second?
Pat: Second.
Jonah: Second, second our sophomore year. He's reminding me that the boat took a longer than four years to build, actually. Also, my colleague [Tanya 00:01:16], staff at the Nationalities Service Center and also a Swattie. So lots of interesting life after you graduate from this place.
Thank you so much for having me back. I live probably about 10 miles from here as the crow flies, in South Philadelphia. I rarely make it back out here to campus, but I'm always just reminded how beautiful it is. South Philadelphia is not very beautiful, although there is much better Mexican food.
I am actually not going to be speaking about the law of refugee status tonight. This is sort of my err presentation that has lots of slides and lots of different subjects. What I'm going to be talking about specifically is what in holy hell has been going on since Donald J. Trump was inaugurated as President of the United States. It has been a lot. There have been ... Sorry, I'm going to skip through. It's like a class I give to doctors and medical patients. Here we go.
There have been a series of executive orders and guidance memoranda that have issued from the Trump administration over the past, really just several weeks that have had some pretty profound implications for how this country treats non-citizens, treats immigrants, and treats aliens. I'm going to describe that in a certain degree of detail, and I apologize to all of you. I'm kind of a law dork. So heaven help you all. I'm going to dig into a little bit of detail on this stuff and try to figure out how these things work, how they are structured.
Given that, obviously I have a very particular set of opinions about these things, but to take it seriously as legal instruments and figuring out what exactly the administration is trying to do. Then, because also then that leads to the next thing, is what can be done to challenge them. I also don't want to dovetail that conversation in, which I think is a larger point, a larger idea that there's something different about this administration and what this administration has done in its approach to, essentially, people who are different, who don't fit some idea of what an American is. I think that's actually a profound and very dangerous thing.
Just to sort of, in that vein, I wanted to start off with two quotations. The first one, this is from his speech which was given shortly after September 11. "These acts of violence against innocents violate the fundamental tenants of the Islamic faith, and it's important for my fellow Americans to understand that. The English translation is not as eloquent as the original Arabic, but let me quote from the Koran itself. 'In the long run, evil in the extreme will be the end of those who do evil, for they rejected the signs of Allah and held them up to ridicule.' The face of terror is not the true face of Islam. This is not what Islam is all about. Islam is peace."
Almost 14 years later, Donald J. Trump gave a speech where he was, you guys may remember this, he was reading off of a paper in one hand so that everybody was sure he really meant it and had given it some thought and was doing one of us gesticulations with the other hand. But he said, "Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on."
So the first speech, of course, is an excerpt from something George W. Bush said at the Islamic Center of Washington, D.C., on September 17th 2001. This was when a large swath of Southern Manhattan was still clogged in smoke. There was truly a national crisis going on, and yet Bush, a man who would later invade two Muslim countries, the second invasion on completely false pretenses, throw the Middle East into chaos, however, he still felt the need to articulate this sort of secular-liberal-pluralist tradition that has been a mainstream of American democratic discourse since certainly the Civil Rights era in the 1950s and 1960s. He was still talking in that language despite all of the things that would follow.
Trump has completely abandoned that. He has explicitly rejected that, and he ran for president against that, against those ideas, as exemplified by his articulating idea for a Muslim ban and what he's indeed done over the past couple of months.
So I'm hoping, I'm trying to just set the table more broadly, and hopefully we can maybe come back to those bigger ideas towards the end of my talk. But let's talk sort of nuts and bolts. What has this man done? He's been signing executive orders.
I just threw up a brief timeline here. The big ones were January 25. There were two executive orders having to do with, they're sort of border security and internal security, roughly. So there's, we're going to build a border wall. We're going to build lots more detention centers. We're going to punish sanctuary cities such as Philadelphia. We're going to do a lot more expedite and removal. I'll go into more detail on that later, what all that means.
January 27. This was kind of the big bombshell, I think. Is the executive order barring entry from seven countries and the scaling back the refugee resettlement program. This one went into immediate effect. Very little warning. Caused chaos at airports. It caused widespread detention of people trying to enter the United States, and it caused deportations. So right here at Philadelphia International Airport, there were two Syrian families who were coming in on valid immigrant visas. They were detained, and they were shipped back to Damascus all in a very short period [inaudible 00:07:30] but all in a very short period of time that morning.
The evening of January 28th, the Eastern District of New York, that's the court that has jurisdiction over JFK Airport, issued a temporary restraining order that at least began to let people out of detention at the airports. Then later on, the State of Washington sued, and a judge in the Western District of Washington issues a nationwide temporary restraining order, knocking out much of the January 27th order. That's upheld by the 9th Circuit Court of Appeals in San Francisco.
So large pieces of the January 27th order have been put on pause. However, they're still being litigated. A temporary restraining order just bars them from going into effect. It means that all this stuff ... It's still technically possible for the Justice Department to try to ask for it's called either en banc meeting of the 9th Circuit. So basically, get more of the judges to look at it. Or to appeal up to the Supreme Court, but it seems like they're not going to do that now. So this will continue to get litigated in the U.S. in District of Washington, except Trump has said that either after his big speech tonight, or maybe tomorrow, or maybe Thursday, he's been saying this for about a week, there's going to be a new version of this executive order, which also speaks to, this stuff is constantly changing. It just takes a lot of time to keep on top of it all.
Then, finally, on February 20th, they circled back to those original orders on the 25th and began to really flesh out what they meant by all the stuff in the orders. So there's been an extraordinary amount of stuff going on in a fairly short period of time, and a lot of this stuff is totally crazy in the way it's been carried out and just the way it's been implemented, just really different than the way these things are usually done.
So that's what we're going to talk about, one thing at a time. I'm going to go into a little more detail about the actual executive orders. First, let me take a step back and sort of explain what an executive order is. I'll take one more step back. Little review of high school physics, physics, civics. (audience laughter) We are ... This room has like three body diagrams drawn on the left. But no, civics is what I meant to say.
So, very basic ideas of how governments work. We have the legislative branch that writes the laws, the executive branch that carries out those laws, and the judicial branch that interprets what the law is and what is constitutionally permissible. That's the very basics of how our government has functioned for over 200 years now.
The president sits on top of the executive branch. He is in charge of executing the laws, and pursuant to that, all of the executive departments, all the machinery of the vast federal bureaucracy is under the administration of the president.
However, law making power and ultimate legal authority resident with Congress. They direct in all kinds of different complicated ways. This is what ... There's this whole branch called administrative law that deals with all of this stuff. They direct in all these complicated ways, the ways in which laws get carried out, which executive branches do it, and to what extend the presidency can step in and tinker with that stuff.
So the first thing is, an executive order is not promulgation of a law. His executive orders, one of the ways in which they were strange is that Trump referred to himself in the first person, which I was reading somewhere has basically probably never happened before. He might think that this is sort of a proclamation and is sort of a law creating thing that he's done, but that's not actually how it works.
In some cases, Congress has given the president fairy explicit power to just declare how something is going to be. Refugee resettlement is one such issue, which I'll touch on in a little bit. But in a lot of other places, you actually read the language of the orders, and they sort of couch each paragraph in "to the extent allowed by law." It's basically saying that the lawyer who wrote this stuff understands that the president can't actually order a 30 billion dollar wall be built in the Texas desert without some input from Congress. For example, Congress has to pay for it.
So there are parts of these executive orders that are sort of priority setting. It's signaling what the administration's policy is going to be and showing their true stripes in many ways, but has very little actual effect. That's, I think, the first thing to keep in mind.
The two orders on January 25th. Basically, there's the build the wall order, which is talking about securing the southern border through the immediate construction of a physical wall. There is a law in the books that sort of set aside federal dollars for building a fence, actually, as described in the act, opposed to a wall, but same idea. So they invoke that law and say, but he's basically just ordering the federal bureaucracy, form some committees, start thinking about how we're going to do this as quickly as possible. Again, he's not actually going to be able to do this without Congress setting aside enormous sums of money. Then the other part of that is also they're going to build more prisons, which is mostly down by the U.S.-Mexico border.
The other executive order, enhancing public safety in the interior of the United States, did a couple of different things. These things have more teeth. This is where the administration is ordering the enforcement agencies within the various executive departments, mostly the Department of Homeland Security, which runs all of this stuff, in how they're going to enforce immigration laws. Part of that has to do with what are called enforcement priorities.
There are somewhere in the neighborhood between 10 and 11 million undocumented people currently living in the United States. Numbers are fairly inexact. Any one of those people at any time are legally subject to removal from the United States. There's no question about what the law is on that. Doesn't matter if you're a perfect citizen, if you have tons of kids here, if you are living here without status, you can be placed in removal proceedings and removed from the United States.
There's a question, though, of how that happens, and there's also a question of whether or not you will actually be placed into proceedings. What that hinges on is that it is physically and legally unrealistic to actually say that anywhere near all of those people are going to be physically removed from the country. There is annoying little things called due process rights. There is an entire court process. There's an entire immigration court system for processing these removal proceedings. That stuff takes time, and it takes resources.
I should say, so there's an enormous legal impediment to moving that many people. Sort of asterisks on the side though, it might be physically possible to move that many people, but we should be very clear what that means. To physically move that many people in a short period of time, that's when stuff starts getting really scary. That's people getting loaded onto buses and driven across the southern border en masse with very little process.
I don't think that's going to happen. I still have some belief in the power of our institutions to resist that kind of stuff, but I think it's important to remember what that actually means. When Trump made a campaign promise that said all of these 11 million people have to go and they're going to go within my first year or something like that ... And at another point he said he thought he was going to remove three million what he had considered criminal aliens within the first year. That's more people than Obama removed in eight, by the way. When talking about these very enormous numbers is a very ugly, very violent thing. That's, I think, something that's important to keep in mind.
What every administration has done, though, is they set removal priorities. We can't actually move all these people out, so we're going to figure out who to prioritize. Basically, everyone's always agreed it's going to be people who have certain criminal convictions. A lot of people that me and Tanya see on a day to day basis, if they're complacent in immigration proceedings, many times, certainly over the past couple of years, it's because they got into some kind of criminal trouble. They got arrested. Maybe they got convicted of something next where it got them on the radar of Immigration and Customs Enforcement, ICE, which is the immigration police and immigration prosecutors, essentially.
That sort of was the cascade of enforcement priorities. The Obama administration was prioritizing people with criminal convictions and also people who had very recently arrived in the country, part of the rationale being that they presumably have less connections to the country. They probably don't have as many family members, et cetera, and therefore it's easier and less harmful to remove them.
Something else, and what the executive order did is it began to knock holes in that kind of edifice. Indeed, what the guidance memos of February 20 did, which I referred to before, is it basically wiped out the priorities entirely. I'll come back in a second to what that means.
Punishing sanctuary cities or sanctuary jurisdictions, as it refers to. So most of the major cities in the country, lot of small ones too, have sort of declared themselves sanctuary cities. Anyone who thinks they know what that means is wrong because there's no definition of what exactly that means. There's no sort of ... You can't look that up in a law code somewhere and say, "Ah, this is what a sanctuary city is." But it does ... It is a city signaling, I think, some important things to their undocumented population. Usually, the key part of being a sanctuary jurisdiction is that you have instructed your local police not to cooperate with the federal immigration authorities.
In Philadelphia's case, the big deal of the mayor's sanctuary city proclamation is basically was cutting the local ICE office off from the Philadelphia fingerprint system. These fingerprints all still get uploaded up into the FBI federal database. It's all nationally available, but they weren't letting ICE look over the Philadelphia Police Department's shoulder as they were making arrests and as they were running these fingerprint checks, which meant that ICE, when they suspected someone of not being a citizen who had come into contact with the criminal justice system, they were going to have to go get them on their own.
What used to happen in the bad old days, and what may start happening again, is ICE could issue what's known as a notice of detainer, which is basically they would send a letter to a local police authority that had just arrested someone and maybe was holding them in jail prior to being arraigned in front of a judge and say, "Whenever you're done with this guy, even whether or not there's a conviction, whether or not anything goes to trial, when you're done with this guy, just hold onto him." Usually it was for a period of 48 hours. "And then we'll come pick him up."
The sanctuary city stuff tended, would break that chain, and they did it for a couple of reasons. One, obviously, if you are undocumented and you think that any interaction with the police could lead you into deportation proceedings, into removal proceedings, then you're far less likely to cooperate with police. You're far less likely to report crimes against you, against your property, against your family members. It just makes undocumented communities all the more vulnerable. So there's a very strong policy argument in that direction.
It's a very strong policy argument also just in purely fiscal terms because when the city of Philadelphia was holding someone for 48 hours in one of the city jails, waiting around for ICE to come pick them up, the city of Philadelphia paid for that. So also, local jurisdictions don't like the money part, either. So there are several good reasons for cities to declare themselves sanctuary jurisdictions.
Second executive order of January 25 also talked about punishing sanctuary cities and trying to roll that back. This is actually something where, again, they can signal that they have this sort of policy intent. They're going to have a very hard time doing it legally, partly because of a very successful multi-decade campaign by mostly right-wing groups to actually narrow the extent, on federalism grounds, the federal government can tell local jurisdictions how to carry out their own police functions.
There was a case going back to the '90s called the Printz. It was a Supreme Court case. As part of the Clinton administration's assault weapons ban, they had, before they had set up a national background check system, they ordered local police to run this background check. It was only supposed to last like four months, but civil libertarians and pro states' rights organizations saw an opportunity here, and they managed to challenge it during this four ... I think it was six months. I don't remember ... During this period. It went up to the Supreme Court. The Supreme Court agreed, and it sort of established an important case in what's known as anti-commandeering doctrine, which is basically the federal government can't reach down and commandeer local authorities to do its job.
That saw another big expansion as part of all the litigation over the Affordable Care Act, where the Affordable Care Act as originally written was going to try to compel states to accept an expansion in Medicaid by basically saying it's an all or nothing thing. You accept the Medicaid expansion or you give up Medicaid entirely. The Supreme Court decided that that was, again, effectively commandeering. So because of this, what used to be ... Administrations have changed, and all of a sudden, states' rights are starting to look better to those of us on the left.
But there's this long tradition of doctrine basically restricting the extent to which the federal government can do this. So when Trump set his executive order, I think they actually explicitly said that they were going to somehow tie federal grants to whether or not local police were cooperating with ICE. I think that's going to go absolutely nowhere in the courts.
In Section 13, this is the so-called Voice Office, this is just nasty. They're going to ... It's actually creating an office within the Department of Homeland Security that's just going to keep a register of crimes committed by undocumented people and to publish it on a website. You can imagine just how ugly that could be in terms of people being harassed later on. And also tying it to the individual jurisdiction. So it's also supposed to embarrass sanctuary jurisdictions by publicizing if so and so was released from a Philadelphia prison, then maybe committed an assault three weeks later. So it's completely useless as data in terms of telling us anything interesting, but certainly could do a fair bit for inflaming people's passions.
Sorry, I know this is sort of an iterative talk. I keep on coming back to the same things, but changing stuff so quickly, and the only way I can think to clearly do this is try to do it chronologically.
Then the January 27th orders. There was a lot of action there. The major parts were bars on people from a list of seven countries, which is, I think, the part that we were most familiar with. It was a 90-day bar, and this part was kind of funny. When I first read this thing, I actually thought they'd made a mistake, which didn't surprise me at all at the time, because they said any alien listed in Section 217 A12 of the statute. 217 A12 has to do with the visa waiver program, which is why it's a strange fit.
Visa waivers, if any of you guys have ever traveled to Europe on a U.S. passport, you get to just ... You don't have to apply for a visa. You get to breeze right in. Same deal for Europeans coming here, and Australians, New Zealanders. There's a bunch of countries. But basically it's a reciprocal program that allows people from wealthy, mostly Western countries travel back and forth without getting visas.
There was an exception built into the program. I think it was around the time of the [inaudible 00:25:25] shooting in Paris. Basically saying, though, that anyone from one of these visa waiver jurisdictions who had traveled to one of these seven countries, so this is where the seven-country list came from, would need to go through some additional step of counselor processing.
There's a lot of grounds on which to critique this, but you can at least see how there was a rational connection between being worried about a French citizen who had spent significant amounts of time in Syria before allowing them to then enter the United States. There is at least ... One can imagine a rational connection.
However, what the Trump administration did is they took this list of seven countries, and they threw a 90-day bar. That is, and using this mechanism called 212 F, which gives the president very broad powers of blocking groups of people from entering the United States. I'll talk about 212 F in a little bit more detail in a second.
The other funny thing about ... This was politically clever because it let them say that this wasn't our list. This was an Obama administration list. So basically I heard a couple representatives of the administration try to implicate that this sort of had bipartisan support somehow, as a result. But it's an important distinction. The 217 A12 list was if you would otherwise be eligible to enter without a visa and you have been to one of these seven countries within the past, I think, year or something, then you're going to have to go to the U.S. embassy first and talk to an embassy official. What they did under 212 F was a complete ban for 90 days.
The other thing they couched it on is, it's sort of the walk and chew gum argument, as I like to think of it. Is they stipulate that we have this enormous strain on our national security. We need to write all these reports and figure out how we're going to set up these systems and extreme vetting. So we want 30 days to write a report, and because we can't walk and chew gum at the same time, we have to close down all entry from these countries so we can focus all our resources on writing the report. Which sounds pretty damn silly, but a federal judge in the District of Massachusetts took it seriously enough to not issue a restraining order. So it actually does have some legs.
This, very near and dear to the Nationalities Service Center, my employer, is a suspension of refugee admission for 120 days. The United States Refugee Resettlement Program identifies refugees living in large refugee camps overseas and, through this very grueling application process, identifies some minuscule minority of those people and then brings them for permanent resettlement here in the United States. They're somehow going to even more extreme vetting. Right now refugees [inaudible 00:28:28] about, it's three years of processing. That's not just waiting for the paperwork to clear. That's three years of interviews with multiple agents of various parts of the federal bureaucracy. Any one of these people gets a bad feeling about one of these applicants, and they could shut down the whole thing right there.
Despite all that, the United States, in absolute numbers anyway, has long been the larger re-settler of refugees of any other country in the world. This year, I think the Canadians will pass us for the first time in history. That is now going to be shut down for 120 days. So all new processings are going to stop.
Also, at the end of the Obama administration, this is something where, by executive order, a president can probably do some significant damage. It's up to the president to decide how many visas get issued in the particular year. So Obama had set it to around 100,000 in his last term for this fiscal year. So it starts in October 2016. Trump is going to retroactively cap it at 50,000, and we're basically there already. That affects agencies like ours partly because it's going to effectively result in about a 40% budget cut over the next couple of months, which obviously is going to be difficult to absorb.
Everyone with me so far? You can feel free to ask questions. I know I'm covering a lot of ground quickly here.
I'm going to take a little sidebar and then talk about the litigation strategy for this stuff. There's over 27 lawsuits were filed as of the last time I checked anyway. All over the country. We came pretty close to filing one of our own here in Philadelphia, but fortunately the State of Washington and the State of Minnesota did the job for us, at least for the time being.
There's obviously all kinds of ways in which you can challenge this stuff. The strategy has mostly come down to attacking the use of 212 F to bar people from entire countries, which, again, is pretty unprecedented because there's another clause in the INA, the Immigration and Naturalization Act, it's in Section 202, which basically is a non-discrimination clause. Now it does mention the word "any issuance of visas." So there's a whole legal argument that could be had that I won't bore you guys with there. But these two parts of the statute do sit kind of opposition.
So 212 F, which was passed some time in the early '50s, the paraphrase says the president may exclude any class or group of aliens for any period of time as he sees fit by proclamation when it's in the national interest. This is a very broad power that Congress has handed a president, and with very little extra ideas of what might check that power.
However, at the same time, this other section of the INA, very same statute, Section 202, and this part was passed about 10 years after the 212 F section, which is relevant when you're doing statutory, trying to figure out statutorily what Congress meant, that says you can't discriminate. Also, we have something called the United States Constitution and the Bill of Rights, which have principles of equal protection and non-discrimination baked into it.
Yeah?
Audience member: When were these things passed?
Jonah: Which things?
Audience member: The [inaudible 00:32:13] of the Immigrant Naturalization ...
Jonah: I don't remember ... So the INA in its current form. These things get revised every couple of decades. Actually, if you give me a second, I'll do a little bit more of a spiel on the history.
The 212 F, I think, was '51 or '52, I want to say. The Section 202, that was directly out of ... It's not an accident. That was on the tail end of all the civil rights legislation in the mid '60s because there was also, while the Civil Rights era was going on, and we had the Voting Rights Act and the Civil Rights Act, there was also this massive revamping of the American immigration system that went on sort of part and parcel to that whole legislative effort.
That's actually ... I'll give my little historical spiel now. Very relevant to the viability of 212 F because there is another countervailing doctrine in constitutional law called the plenary powers doctrine. Brief history of immigration law in the United States. For much of U.S. history, or least the first half of it, we basically didn't have any immigration law. There is a clause in the Constitution that said Congress can set a uniform rule for naturalization for becoming a citizen, which used to be pretty lax. You went in front of a judge. It could be a state judge. It could be a federal judge. You'd say, "I want to be come a citizen." They asked you some questions, decided if you were worthy, and then the judge decided right then and there yes or no.
There was a common law rule, which means that it's not explicitly written down, but that anyone born in the United States was a United States citizen by virtue of being born here. That was constitutionalized at the end of the Civil War as a mechanism to dismantle slavery in this country. That's why we have birthright citizenship, which is very, very rare. Very few other countries have this, but it was constitutionalizing what had been a common law rule that only applied to white people prior to that. It said it was going to apply to everyone because, of course, you dismantle chattel slavery by expanding citizenship to everyone. That's the legal mechanism of what was going on there.
In 18, I think it was 1882 was the first one was passed. Congress began to really pass some laws excluding groups of people. Perhaps the title of this will tell you everything. The first law was called the Chinese Exclusion Act, which basically was a bar on anyone, a 10-year bar on anyone from China or Taiwan, and I think eventually they included Japan, from entering the United States, period and full stop.
This caused particular trauma, of course, because there was large Chinese populations living on Western sea board at that time. Some of these people would travel back and forth and would get caught up.
In the first Supreme Court case that really tested this stuff, it's going to sound very familiar to what's just happened this past month. There was a guy who lived like 15, 20 years in San Francisco. He got on sailboat. He sailed back to China to visit his family. Before he had gone, he got an official document from the federal government, what we would now call an advance parole document, but basically official permission. He went to the government and said, "I'm going to go home and visit my mother. Give me a document that says I can get back in when I'm done, because my wife and children live in San Francisco." Government said, "Fine. Here's your paper. Go with God." He went. When he's literally on the boat back from China to the United States, Congress passes this law, and his status becomes immediately ambiguous in transit. This is exactly what happened to many hundreds of people between January 27th and January 28th of this very year.
So this guy sued under a bunch of legal theories, and there was a number of these cases that got brought. They're now known as the Chinese Exclusion cases because they all dealt with the Chinese Exclusion Act. They challenged in a whole number of grounds, and the act was upheld every single time. What the Supreme Court reasoned was that somewhere in sort of the vapors of sovereignty and what it meant to be a nation-state was this power to exclude people, this power to reject non-citizens from entering the country. So that in itself is not a very radical proposition. That is something that nation-states do.
However, sort of secondary to that and the effect of that was that it also seemingly blocked any 14th Amendment challenge, any equal protection challenge, any kind of civil rights based challenge and said, but wait a minute, why are you excluding this person? Are you excluding that person for a reason that we find legitimate?
That idea has survived. This is all still good case law, and it's known as the plenary powers doctrine. Plenary just means absolute, essentially, in this context, and it's saying that Congress has pretty much unfettered power to exclude groups of people from the United States and to set rules of admission and naturalization. Sorry, admission into the United States. Set aside naturalization.
Pat?
Pat: Clarification. So this Chinese guy who sailed back, he was not a U.S. citizen?
Jonah: He was not a U.S. citizen, right. So yeah, he had immigrated, I think, in his teens. I haven't read this one in a while. And these are amazing ... Chinese Exclusion Action, it's only about four or five paragraphs long. It is amazing thing to read because it did include an exception for people who'd left and were trying to come back in. Right there in like Section 4 of the statute, it says if the Chinaman, I'm quoting directly, can provide a credible white witness to prove that he has permission to re-enter the country, then we can consider it. So this plenary powers stuff, I'm going to be very explicit here, this is seated directly, this is a cornerstone of white supremacy in the United States.
Sorry, there's a question over here. So while, because the statutes have changed so radically, the Chinese Exclusion cases themselves are not directly relevant. The central idea of plenary powers doctrine has been repeated by the Supreme Court on multiple occasions right through ... Oh God, I think it probably was invoked in Kerry versus Din, so that literally referring to Secretary of State Kerry. That was just a couple of years ago. So that is good law. It still lives and breathes, and it's also why this stuff all got enjoined very quickly. It's also why the government has a case here. They could still win on this stuff once it's fully litigated and once it inevitably makes it up to the Supreme Court. Is that there is a tradition of extraordinary deference to Congress when it comes to determining groups of people to exclude, an extraordinary deference to the executive on questions of national security. Tactically, there was something, this stuff was ... Again, as I said, this stuff was crazy and chaotic. I think the aesthetics of it were very distasteful to federal judges who, left-wing, right-wing, they tend to care about institutions and process and things being done in a tight and predictable manner. They just looked at this madhouse that had been created at an airport, and they're like, whoa, whoa. That doesn't mean though in the long term they won't uphold some significant pieces of this.
Yeah?
Audience member: What is the guard, if there is any guard, for from creating a law that is explicitly contradictory of other law? Not like unconstitutional, but straight up does not ...
Jonah: Statutes.
Audience member: Yeah.
Jonah: Usually, it's a ... The most basic rule is it's going to be a later in time. So even if a later in time statute doesn't explicitly do away with the previous one, if a court is forced to construct or create some construction between the two, it's going to say, "Well, Congress the second time around didn't explicitly say what they meant to do about the first one, but we're just going to assume since they passed a later, it should control to the extent there's a conflict." So yeah, that is exactly the argument we're going to get when it comes to which should control, the non-discrimination clause or unfettered 212 F power.
That's also, I think, strategically why we haven't seen the Justice Department take this to either to an en banc panel of the 9th or to the Supreme Court, because I think when all this stuff got promulgated, Jeff Sessions hadn't been confirmed. There was no attorney general. I think General Kelly, who is now Secretary of Homeland Security, I think he had literally just been sworn in.
Is this stuff came directly out of the White House, which is, again, it's very kind of unusual. Usually, an executive order of a move of this magnitude, there would be a lot of back and forth with the executive agencies. The administration was basically communicating directly with border control officials at the airports with these things and saying, "You guys figure out how to interpret this stuff." That's really weird. It's very unusual.
Also, again, why I think the judiciary, and of the four judges who looked at this thing, in either the Western District of Washington or at the 9th Circuit, two Republican appointees. There was a George W. Bush appointee. I think two W appointees. I don't remember. A Carter appointee and an Obama appointee. It's completely unanimous out there that this was beyond the pale. I also think though, now that Jeff Sessions is in office, and Jeff Sessions keeps me up late at night sometimes with worry, but he is not a stupid man, and I think that they took a look at some of the language, in particular of the 9th Circuit decision upholding the restraining order, and they said, "Wow, there is ... If we lose this thing, we could lose this in such a way that creates all this precedent we don't like," in terms of creating rights of visa holders to sue, creating rights of, really digging into what courts have long left to executive agencies to work out, basically entirely on their own.
Yeah?
Audience member: How does the order apply to dual citizens?
Jonah: That was ambiguous originally, but they have later clarified it that as long as one of your citizenships is not on the list of seven, then you're okay. I think the day of though, several dual citizens were turned back.
But then, I know this to be the case. A dual British-Iranian maybe citizen got caught up in it and very quickly made a complaint to the British government, which then turned around and called up the Trump administration, said, "Wait, you can't do this to a British citizen." So I think there was actually briefly sort of an exception to British citizens. Then they were all, "Wait a minute. You can't. This is beyond the pale even for us." So dual nationals were exempted.
Green card holders were later exempted, although that itself also wasn't clear, and it was also done in a really weird way. It was, the office of chief council in the White House wrote a letter saying, "We've decided this actually doesn't apply to legal permanent residents."
That is not how this stuff usually happens. In fact, the courts made note of that. They were sort of like, "Well, why are we even listening to the office?" This is like the president's kind of lawyer. It is not someone who's in the Justice Department sitting as, or someone who works for the attorney general.
Okay, is everything kind of clear on January 27? I was switching gears back to January 25. So where we left January 27 stuff. A lot of it hasn't shut down. I spent a long day out at the airport about two weeks ago because I had an Iranian guy who had a valid immigrant visa who had gotten stuck, but it was a pretty easy day. It was a long day, but they let him in. They tore his bags apart and did some other petty things, but he's now in the country with his wife. So, yay.
However, this stuff isn't dead yet. That's the other thing I want to remind everyone, and we have no idea what they're going to pull tomorrow. Yeah?
Audience member: Yeah, I wanted to ask about that. In terms of, on the basis on which the retraining order was issued on the executive order, what would have to be different about the new executive order? Would it be able to do the same stuff? Or would there be things the executive order wouldn't be able to do?
Jonah: That is an excellent question. I have trouble imagining at this point how they could structure this stuff in such a way that it's not going to run into trouble in the courts pretty quickly. Again, I want to hold a marker. Plenary powers is still good, and there's still a legal argument to be had. However, I have trouble thinking, what could they do different do accomplish essentially the same thing and not get it immediately enjoined?
Audience member: If the president can decide the number of visas, why didn't he just set the number to however many it had been [crosstalk 00:46:43]
Jonah: Right, so these are two separate ... Maybe I didn't go into quite enough detail the first time around. These are two separate things. The visa numbers he was playing around with is numbers of refugees who get resettled every year. There is actually a lawsuit. He applied that same 212 F. They did sort of this back [inaudible 00:47:02] Obama had set it to 100,000, give or take. He had said as soon as you hit 50,000, everyone past 50,000 we're going to automatically 212 F. He used it as a burr. We're not actually even formally revoking the underlying visa. We're just saying anyone on those numbers, 50,0001 through 'til the end who tries to request entry is going to get turned back, which also means that the airlines are not going to let them on. That's the other partner in this whole thing, is that the airlines are not going to let them board at their departure ports.
However, there's no question that next fiscal year, starting in October of this year, he can set that number to zero. I think there's no question about that. But that's only for resettling refugees. He can also make it to set priorities. When he said no more Syrians period, they can do that, and there's no reason to think that won't change. We're hoping that they'll keep the number at 50,000 going forward, partly because 50,000 was mentioned in the statute as kind of a cap. It's not worth going into the details, but we'll see.
Okay, so that was January 27. I want to cycle and talk about January 25 again because that's been ... The most recent thing to happen is some clarification of the January 25 memoranda. What we got were DHS guidance memos. Guidance memos are a tool used by all executive departments to varying degrees. They are sort of quasi legal instruments. That is actually the technical term. Or quasi legislative instruments. What they are is sort of bureaucracies communicating internally among themselves, explaining to people what went down the chain of command, how they should carry out various functions and roles. They're actually extremely important documents because they are often what some low level officer who's making a decision on behalf of the attorney general, usually the Secretary of Homeland Security, it's what they're going to read and what they're going to follow in making their decisions.
So these two guidance memos came out dealing with the two January 25th orders. As I referred to before, they just basically blew out the removal priorities. It means that anyone who has no status is now subject to getting NTA'd, as we say ... It's a notice to appear, what gets you pulled into immigration court. It's a charging document ... Is now subject to that, which creates a tremendous amount of uncertainty, if you think about it.
Under the previous regime, if you were living here undocumented and had been for a while, you had a certain sense that as long as you stayed out of criminal trouble, went to work, you could have a pretty good chance of being able to go home at the end of the day, and seeing your kids, and not getting picked up and arrested.
This now sort of throws all that into chaos. Whether or not you have a criminal conviction, you are subject to get picked up. Before, whereas I could go to my counterparts at the local ICE office, which is where all the, again as I said before, all the government attorneys who prosecute this stuff, and I could call them up and say, "Hey, this person who is in removal proceedings, my client, they're not a removal priority. What the hell are we doing here?" The judges would ask the same question, too.
They would, and I don't know. Tanya, have you noticed? I think they've stopped, actually. They used to ask in the initial master calendar hearing where this person makes their first appearance, they'd turn to the government and say, "Is this person a removal priority? Or for God's sakes, can we dismiss this case and just get them off of my docket?" Now the answer to that is, yes, they are a removal priority. So they stay on the docket.
There's going to be an expansion of 287 G programs. That is a part of the law that allows ICE, again the immigration police, to cooperate with local law enforcement. It seems like there's going to be a lot of very enthusiastic sheriff's departments around the country who are going to jump on this one. And that just lets more and more types of officers enforce various parts of immigration law.
Yeah?
Audience member: This is what I think, that I'm really worried about. Can they compel local law enforcement to come around or whatever to do what they say?
Jonah: That gets back to the anti-commandeering question. I think the answer is pretty clearly no. A big worry is there is a bill, House Bill 10 something or rather. Damn it. I forget. I'm sorry. There is a bill in Harrisburg right now. Anti-commandeering is a federal-state thing. There is a bill in Harrisburg that was originally proposed by a representative from Northeast Philadelphia named Martina White, that would punish sanctuary cities in Pennsylvania. That is very worrisome.
Audience member: What does that mean, punish?
Jonah: Punish? Basically it says ... So Philadelphia, for example, is a poor city. It gets well in excess of 100 million dollars a year from Harrisburg through various state programs, tax write-off programs, any number of things. They're basically saying they would shut that down. They modeled part of it on this bill the NRA basically wrote five or six years ago which would create a cause for anyone to sue the city of Philadelphia if they were not cooperating with federal law enforcement. So it just create a lot of litigation. The city has to spend all this money defending themselves in court all the time. That's scary. The only question now is, it'll probably pass, but whether they can sustain Governor Wolf's veto of it. So call your state rep. You are all residents of the fair commonwealth of Pennsylvania, and these guys are trying to mess with us.
Established the Voice Office. I talked about that. That is naming and shaming sanctuary cities and creating this really gross registry of aliens who have committed crimes.
And here is, I think, the last major substantive topic I will talk about. You guys are all amazingly patient. Is expansion of expedited removal proceedings.
So we've talked a little bit about how immigration law has evolved in various phases, such the Chinese Exclusion Acts, gave way to a strict quota-based system which basically entirely excluded people from Africa and Asia from coming to the United States. That was in place, God. In its basic, they tinkered around with the details and the numbers of visas, but that structure existed right through the '40s and into the '50s. When finally it was becoming untenable to have that explicitly racist immigration system, it got replaced with the current, very family-based system that we have now. The quotas were almost entirely done away with. When the Immigration and Naturalization Act took effect, so by the time we hit the mid '60s, the quot system was dead and buried.
Since the '60s, the only other major changes in immigration law happened in 1996 when Bill Clinton, who signed many evil and wicked bills, but this one right up with the [inaudible 00:54:55] were probably the two worst. That was welfare reform. But the '96 we call it IRA IRA made all kinds of changes to immigration law.
One of the things that it inserted in there is something called an expedited removal process. This mostly applied to arriving aliens, which is the technical term for someone who shows up at the nation's borders, knocks on the door, and requests entry. An expedited removal process ... Did I do a slide on this? Yeah, I did. Expedited removal process basically allows an immigration officer to act as a prosecutor and a judge, all kind of in one stroke.
So, again, I would concede that there were reasons to do this at the border before anyone had actually been allowed into the country if someone did not have any kind of valid entry documents. Put an enormous asterisk on that. What was even kind of scarier is that the expedited removal process could apply to aliens within the country, who had already crossed the border and come in.
Just in terms of comparing and contrasting. So the 240 A removal proceedings, that's what ... I spend a lot of my time in immigration court. That's what I'm doing. I'm in a 240 A removal proceeding. But it's a removal proceeding. You're in front of a judge. There are due process rights. You have a right to an attorney. The Fifth Amendment applies. You have a right to appeal. So you have all this stuff that you would expect to see in a court proceeding. It's truncated. It's not as expansive as it is in a criminal court, because we have this sort of weird fiction that deportation proceedings aren't criminal, they're civil, which means you get due process light. But there still is due process.
Expedited removal, you get none of that stuff. No right to an attorney. No rights to appeal. The only way you get out of the due process right is if you articulate to the officer and they understand that you have articulated to them that you have a fear of returning to your country of origin. That's supposed to trigger what's known as a credible fear interview process. Basically, that's what gets you on track to applying for asylum, to applying for some form of asylum.
So if you tell the officer who has arrested you and is about to put you on the bus back to Mexico, "I'm afraid of going back to, say, El Salvador, Honduras, Guatemala," they are supposed to then sit you down with an asylum officer who at least has some specific training in this stuff, to do a credible fear interview, and the credible fear process has a relatively low evidentiary bar. In man cases, you will get past it. You will then be issued an NTA, and you'll end up in a 240 process in front of a judge. They don't have to let you go for this though. You might spend many months in an immigration detention facility, but you are at least getting due process requirements.
One of the real surprising things about the guidance memoranda, and I say surprising because, honestly, I didn't even know this wasn't in the regulation. For decades, the way expedited removal has been carried out within the country is they created this 100-mile zone near the borders, and they created a two-week rule, which meant that you would only be put in expedited removal if you were in this 100-mile zone near the border and if it was within two weeks of your entry. So if you could show you were geographically outside of that zone or been in the country two weeks plus a day, you were going to be put into normal removal proceedings.
The statute actually reads, so shame on me for not knowing my law better, that they can ... The actual time limit is two years, and it's anywhere within the country. So they have revoked the guidance dating back to the, I think, George W. Bush administration, before I was practicing law, they have revoked that part of the guidance memorandum and said they are now going to apply expedited removal proceedings for anyone who has been here less than two years and is picked up anywhere within the territorial United States.
That is scary. You're talking about large numbers of people who are going to go through these very rushed processes without an attorney present. This is also [inaudible 00:59:40] a secondary question we all had was ... Trump talks a big game about removing all of these people. How in holy hell? There's already years long backlogs in many of the immigration courts. This is a very strained system right now. How is he actually going to process all of these people quick enough to actually get them deported? Well, this is part of the answer, is that no judges. Don't worry about overburdened judges by just eliminating them entirely.
Yeah?
Audience member: Who would determine if the person has been here for two years or not?
Jonah: That's the arresting officer.
Audience member: So couldn't they just say you can't prove you've been here longer than two years and just apply it to everyone?
Jonah: Yeah, they could make that decision. That would make, you know. There are legal tools in our quiver. One of the ... The fallback litigation if you're doing this detention type is a petition for habeas corpus, which is an old Latinism, show the body. Basically, it means you're hauling the federal government or any government into court and saying, "Justify why this person is being detained. Justify why this person's liberty interests are being trampled with." So there is still a mechanism by which we could sort of ... Literally, it's called the collateral attack. So we collaterally attack these sorts of things, but you can imagine the logistics and the timing is really tough, because if they're turning this stuff around and up here is the time, the client is going to get deported before they even have a chance to make a phone call. It becomes even harder then to unravel it once they're out of the country. So this is a significant tool in their arsenal.
I'm falling a little bit behind. I think, up here.
Audience member: The expansion of the time period and geographical area of the expedited removal. Is that something that's already passed or has ...
Jonah: This was where I was saying I didn't realize this was the case, that that was already in the statute. That was part of what the Clinton administration and the Republican congress did back in '96. They had just internally decided, and this is pressing toward discretion again, to apply it to a much smaller subset of people, people within the 100 miles and people less than two weeks at entry. But that was a discretionary thing, and that's the thing about discretionary things, is the next president can just sign a piece of paper and wipe it away. Yeah?
Audience member: For fear of return, do you have a right to a translator?
Jonah: For a credible fear interview, yes. Yeah, they will provide translation for that.
Audience member: But if you don't get to the interview process?
Jonah: That is also much murkier, how that would play out. I would have to plow through that regulation to tell you with 100% certainty, so I'm not going to entirely answer your question. [inaudible 01:02:41] see you had been doing this for a couple of years. We don't usually have to deal with this stuff. This is a learning process for us, too. This is something where lawyers who practice in the 100-mile zone, like down mostly in Texas. As you can imagine, a large swath of the State of Texas, all of the city of El Paso is encompassed in this.
I was at a ... Another Swattie. My friend Amelia Ana Rodriguez's sister's wedding down in El Paso. We're having this very pleasant hearth-baked pizza dinner out on a patio, and the sun is setting over the desert hills. Just suddenly, just these border patrols in a line just sweep through the parking lot and the patio with flashlights. All these Texans are just sitting there eating a pizza like absolutely nothing is going on. I'm like, "What the hell is this?" This happens all the time. That was life in a 100-mile zone. So the attorneys down there have got used to this kind of stuff, but it's going to be new for those of us up in the Northeast.
Let me finish up with one more concluding thought, and then I'll just throw it open for comment, for Q&A. That makes sense.
Just the last thought, it's very simple. It's probably very obvious to all you all. I practice administrative law, for the most part. That is the law of bureaucracy. I deal with a lot of bureaucratic entities on a day to day basis. I'm all dressed up today, if not for you fine people, but because I was in a hearing this afternoon for a couple of Iranian gentlemen who have a very strange form of parole. It went very well. But mostly what I'm doing is I'm dealing with adjudicators, with administrative law judges. It all falls under the series of legal principles known as administrative law.
If I were to sue the government for making a bad decision, in the administrative context, I say the tool in my quiver, which is [inaudible 01:04:51] statute, is that the adjudicator, the decision maker has made a decision that is arbitrary and capricious. That's the legal standard that we try to hold the government to. It's not always a very easy legal standard to meet, but we go to a federal judge and we say, "Your Honor, the USCIS immigration officer has made an arbitrary and capricious decision." I think that standard bakes into it some ... Actually, it's a pretty fundamental ideas that we have about legality and the law, that it's predictable, that similarly situated people will see the same outcome in a particular type of decision. And admitting romanticizing a little bit, but also that the law and the way that it is carried out is decent, that you're not going to surprise someone and upend their life for very little reason.
I think that the January 27 executive order and the guidance memo decisions, especially the parts of it that overturned the removal priorities rules, I think that was actually self-consciously arbitrary and capricious. I don't think Steve Bannon was thinking in the back of his mind that, "I am going to explicitly violate the judicial standards set out in the Administrative Procedures Act," but I think that part of the idea with these actions was to sow chaos, was to sow discord, was to create this deeply unsettled feeling. And I think even deeper than that, it's because it was, these people who now hold so much power were wanting to point out particular groups and say, "You are less than us. You are not a full citizen in this country. You are outside of our political community." That's what I think is being done here, and that is what I think is so utterly terrifying and why we all need to work very hard and be very vigilant looking forward. Thank you very much.
