The New York Times

The Opinion Pages  | Contributing Op-Ed Writer  

August 31, 017

By Linda Greenhouse

 

 

 

Immigrants in the women’s wing of a detention facility in Arizona. Credit John Moore/Getty Images

 

  

Yes, I recently went to Casper, Wyo., to see the total eclipse, but this column isn’t about that. It’s prompted by something else I saw in Casper after the sun reappeared.

 

A few hundred yards from the hillside where we watched the eclipse is a museum called the National Historic Trails Interpretive Center. A cooperative venture of the federal Bureau of Land Management, the city of Casper and a local foundation, it tells the story of the nearly half-million people who passed through Casper in the mid-1800s on their way west to what they dreamed – or, more like it, desperately hoped — would be a better life.

 

Included there are artifacts and accounts of the pioneers’ Oregon Trail; the route the Mormons took after they were driven from Illinois and Missouri; and the path to California followed by those drawn by visions of gold nuggets.

 

Never having lived more than shouting distance from the East Coast, I had little sense of this history or of the “torrent of humanity,” as a National Park Service brochure puts it, that followed trails with wheel ruts still visible across the West. The museum’s exhibits are engaging, with ample commentary and interactive maps. On the wall near the entrance is a plaque with these words:

 

“The westward urge was a human instinct, like the need to love or to taste spring air and believe again that life is not a dead end after all.”

 

Those words were written not by a federal bureaucrat, but by a mid-20th-century Western writer, David Sievert Lavender, in a 1963 book called “Westward Vision.” Still, a federal agency put them up in a visible position, and keeps them there. Earlier in the day, I had seen one example of nature’s power when the sky went dark. Now here, under federal auspices, was a testament to and celebration of another force of nature: the human instinct that compels people to leave where they are and go, even at their peril, to someplace new, someplace safe.

  

The words lingered in my mind as anomalous, even subversive, as I emerged from the museum into the bright sunlight of another day in the age of Trump. I actually hesitated before quoting the words here, in case Interior Secretary Ryan Zinke or one of his minions learns about them and decides they’re too off-message to remain.

 

After all, when Immigration and Customs Enforcement (admittedly part of Homeland Security, not Interior) parks its vans outside schools to catch undocumented parents picking up their children, or at the Saratoga racetrack to catch undocumented backstretch workers, or outside courthouses (where California’s chief justice, Tani Cantil-Sakauye, has accused I.C.E. agents of “stalking” undocumented immigrants), nothing seems out of bounds. As President Trump, with Republican governors egging him on, considers stripping immigration protection from 800,000 “dreamers,” whose parents brought them here hoping for a better life, it’s obvious that these politicians would recklessly discard enough human capital to fill the city of Casper 12 times over for the pleasure of eradicating another trace of President Obama’s legacy.

 

Immigration will be a highlight of the Supreme Court term that begins on Oct. 2; President Trump’s appeal of two separate rulings against his Muslim travel ban will be argued on Oct. 10. But there is another immigration case that has passed nearly completely under the radar in the more than a year that it has been on the court’s docket, a case with important implications for the constitutional rights of noncitizens who get caught up in any kind of immigration enforcement proceeding.

 

I don’t want to romanticize President Barack Obama’s immigration legacy. His administration’s immigration enforcement was aggressive. True, it maintained that it was limiting its enforcement to immigrants with criminal records. But the kind of crime with which immigration officials might be concerned is a judgment call, and during both the Obama and the George W. Bush administrations, the definition was capacious and unforgiving. A minor drug offense for which no jail time was imposed? A teenage “joy ride” in someone else’s car? Those two offenses combined were what earned Alejandro Rodriguez, a lawful permanent resident who was brought to the United States as an infant, more than three years in immigration detention awaiting deportation before he finally won an administrative appeal in 2008.

 

In the meantime, he became the lead plaintiff in a class-action lawsuit against federal immigration officials. The lawsuit claimed that individuals held in immigration detention awaiting deportation are entitled to a periodic review by an immigration judge of whether they present either a threat to public safety or a flight risk. If neither, the plaintiffs argued, they are entitled to be released on bond. 

 

The case made three trips through the federal courts in California as it faced various procedural complexities before a final ruling in the plaintiffs’ favor in October 2015 by the United States Court of Appeals for the Ninth Circuit. Affirming a ruling by the Federal District Court in Los Angeles, which the Obama administration had appealed, the appeals court held that immigrants in civil detention had to be released on bond unless the government could persuade an immigration judge by “clear and convincing evidence” that they posed a danger or flight risk. In cases of “prolonged detention,” the court held, such hearings had to take place every six months.

 

Writing for the three-judge panel, Judge Kim Wardlaw, obviously exasperated by the government’s unyielding position, took pains to explain the limits of what the court was holding.

 

“While the government falsely equates the bond hearing requirement to mandated release from detention,” she said in a highly unusual accusation for a judge to make, “bond hearings do not restrict the government’s legitimate authority to detain inadmissible or deportable noncitizens.” Rather, she continued, the ultimate disposition of any case “remains soundly in the judgment of the immigration judges the Department of Justice employs.”

 

Judge Wardlaw also noted that immigrants, more than half of whom are held for more than a year, pay a high price for their inability to get before a judge.

 

“This lack of review has proved especially problematic when immigration officers have denied parole based on blatant errors,” she wrote. “In two separate cases identified by the petitioners, for example, officers apparently denied parole because they had confused Ethiopia with Somalia. And in a third case, an officer denied parole because he had mixed up two detainees’ files.” At the end of her 57-page opinion, she repeated, “We are not ordering immigration judges to release any single individual; rather, we are affirming a minimal procedural safeguard.”

 

The Ninth Circuit stopped short of ruling that a failure to provide hearings was unconstitutional. Rather, it interpreted federal immigration law itself to require the hearings, under a doctrine known as “constitutional avoidance” that courts invoke to interpret statutes in a way that avoids the need for a constitutional ruling. If the statutory structure didn’t require hearings, the court suggested, the Constitution’s guarantee of due process might well do so.

 

The Obama administration’s appeal to the Supreme Court, Jennings v. Rodriguez, reached the justices in April of last year. Its tone was fevered. The appeals court’s decision was “fundamentally wrong in numerous respects” and “oversteps the proper judicial role,” the solicitor general’s office told the justices. The court accepted the case for review two months later, and the eight justices who were then sitting heard argument last November. The argument revealed a fair amount of confusion about the extent and implications of the Ninth Circuit’s decision. Two weeks later, with the court in its winter recess, the justices ordered the parties to file supplemental briefs directly addressing the constitutional issue that the Ninth Circuit had avoided. In January, each side filed briefs of more than 60 pages.

 

 Months passed with no word from the court. Finally, on June 26, the last day of the term, without further explanation, the justices ordered the case “restored to the calendar for reargument.” It’s easy to suppose that the justices were tied four to four, and that Justice Neil Gorsuch, who joined the court in April, is now in a position to break the tie. That’s not necessarily the case. Because cases in which the court is clearly tied are usually disposed of quickly, it strikes me as more likely that while there may have been five justices on the government’s side, there were not five who subscribed to the same analysis or were willing to join the same opinion. From the post-Thanksgiving argument period during which the justices heard the Jennings case, six cases were decided, and all but Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. produced a majority opinion. So it’s likely that either of those two tried his hand at writing a majority opinion in Jennings v. Rodriguez and failed.

   

The passage of time has only increased the stakes in this case, as the Trump administration’s dragnet picks up noncitizens at a growing rate. (I say “noncitizens” rather than “undocumented” or “illegal,” because Alejandro Rodriguez, the lead plaintiff, had permanent legal status — which did not then, and does not now, protect a person from deportation. Only citizenship can do that.)

 

When Judge Wardlaw wrote her opinion for the Ninth Circuit, I.C.E. was detaining more than 429,000 individuals a year, with 33,000 in detention on any given day. The number is surely higher today. According to an article in The Houston Chronicle this month on the boom in private prisons to accommodate the administration’s growing detention needs, I.C.E. released 2,400 immigration detainees a month in 2016, but only 100 a month this year.

 

On Oct. 3, the scheduled date for the new argument, Jennings v. Rodriguez is likely to be overshadowed once more, this time by Gill v. Whitford, the Wisconsin gerrymander case that is one of the most important election-law cases in a generation. The Gill case has the 10 a.m. slot, and the courtroom may well empty out when a lawyer representing the Trump administration approaches the lectern to argue Jennings v. Rodriguez at 11 a.m. It would be unfortunate if the Jennings case is eclipsed. We all have a stake in fair political representation, obviously. We all also have a stake in how we treat the most vulnerable among us, those who have made this century’s dangerous passage following the instinct and sharing the hope of earlier pioneers, more naïve now than it was then, that “life is not a dead end after all.”

 

 

 https://nyti.ms/2wq6uht