High Court Backs State Prosecution of Immigrants

at Hollandon Knight. Isn't immigration the domain of the federal government? Well, yes, June, And this is actually a significant rollback of the Supreme Court sort of epic decision in Arizona versus United States, where it sort of gave this broad proclamation that the employment of undocumented immigrants and the prosecution by states of unlawful employment of undocumented immigrants would be something that just couldn't be in the province of the state. States couldn't

take matters into their own hands. And what happened here in Kansas versus guard Sea is that the Supreme Court

created a gigantic loophole in that decision in two ways. First, it said because the prosecution was not actually based on lying on the immigration form itself the nine but rather on tax forms that the state was permitted to make this prosecution, but also because Congress hadn't expressly pre ended this prosecution in a statute, that was enough for the Supreme Court to say, well, it's some of our business. The states can do what they want here. This vote

was five to four long ideological lines. What was the descent, Well, the descent was saying that there was a package of information that an employee gives in order to substantiate that they can legally work in the United States, and that always has a tax form and an immigration form, but that the motivation for lying on both forms is because of immigration, and so be immigration is the reason that the form contains this inaccurate information that should all be

viewed as prosecution for lying about your immigration status, which they believe was preempted under federal law, and that that was already covered under the Supreme Court's decision on Arizona versus United States, which is that states cannot take matters in their own hands and start prosecuting undocumented immigrants for working illegally. But in the end of the day, the five justices and the majority disagreed because they said they were not being prosecuted for lying on their E nine form.

They're being prosecuted for lying on their tax forms. And that difference was enough, even though very small distinction, to carry the day. Here, how many states are actually aggressively prosecuting undocumented immigrants. Well, because of the Arizona versus United States case, this was not a very common thing that was occurring an it in Kansas. This was not very common. But now this will open the door because every state

can prosecute identity theft. Every state has identity theft statutes that if you right the wrong identity or you provide a false Social Security number, you can prosecute that person. And so the only question was can you do that when someone's applying for a job, because that's usually done

for immigration purposes. Why people provide this false information? And so now that this loophole has been opened for state prosecutions, I think you will see many states start to take matters into their own hands and make similar prosecutions, not on the basis of the anine form, but on the basis of identity theft on any other form that was given to the employer as part of the application package. So then what happens if they're convicted are they then

you know, hand it over to the FEDS and deported. Well,

that's another way that this can happen. If you draw this out of the logical conclusion of a person is prosecuted for providing a false identity, then if the jurisdiction is very active at referring people who have been prosecuted to ICE, they will be turned over to ICE, and then ICE has a basis to remove them, both on account of the fact that they may not have been here legally in the first place, which is its own basis to remove somebody, but secondly because they've been convicted

of an inciense involving moral turpitude in this case, which is identity theft. And so it creates a serious problem because it's a way to attract many more people into the machinery of the immigration enforcement and removal system that otherwise existed prior to a couple of days ago. So they'll be sort of safe states and not safe states

like sanctuary states and correct. This is part of a larger evolution that I think even the Congress may identify one day about this concept of why not let states or to take matters into their own hands. Here with regard to immigration, and the states that I want to have these very high rigid enforcement barriers can have them. And the states that don't want to have these high rigid enforcement barriers can have them too, And so it

will be interesting. And what will be interesting is whether the Supreme Court will take this view of states rights when the states are doing positive things toward immigrants. And we're gonna see some cases come out of the Ninth Circuits soon on the issues of sanctuary jurisdictions and whether funding can be denied for grant funding on the basis

of being a sanctuary jurisdiction. And so we'll see whether the Supreme Court is going to be consistent or whether they're going to only take the side of enforcement on both kinds of cases. I've been talking to Leon Fresco, a partnered Hollandon Night about the immigration disputes that dominated the Supreme Court's docket this term. On Monday, the Justices heard arguments in two separate cases on immigration, one on whether to allow quick deportation of documented immigrants apprehended close

to the border. Is this a new policy of quick deportation? Well, what happened was Congress created this process called the expedited removal process, which says that if someone shows up either at our border or at a port of entry, and what a port of entry is would be like JFK Airport or Dallas Airport in in in Washington. If somebody shows up there and they don't have any reason to be there, we don't owe them a whole trial and an appeal in the Court of Appeals and a Supreme

Court decision. We don't know them, owe them any of that. We can just put them into what's called expedited removal and literally put them on the next plane back to the country that they came from, or if they're coming down the southern border, just literally arrest them and take their body to Mexico. And so that's what's called expedited removal.

And the question is there's these concepts where expedited removal is not to be applied in cases where someone is saying that they're a refugee and in that case you have to give somebody the ability to apply for asylum. And so the complication there becomes in that case, can the individual take a habeas corpus decision if the government is not taking their asylum claim seriously, and so that's what the court was debating. Here, tell us a little

bit about the plaintiff. He was a Sri Lankan, right, So the plaintiff was a member of the ethnic minority Tamil population in Sri Lanka who had been apprehended just inside the U. S. Border, and he was seeking asylum. He was saying, I have a fear that if I am removed to Sri Lanka, I will be persecuted on the basis of my minority status. And what happened was the adjudicator who was there at the border said that

this person is unlikely to qualify for asylum. And so what happens when that happens is the X added removal order can be executed. And so this person said, but wait a second, what if this person is wrong, shouldn't I be able to appeal this to a court under the habeas corpus provision. And what happened is all of these cases in the past have failed, but the Ninth

Circuit for the first time said, you're probably right. You should be able to appeal this to a federal court judge and say that the adjudicator got the law wrong. If that was in fact true. And so that's what was the purpose of this case. Is does a person actually have that right to go to federal court and get that adjudicator's decision reverse or is that adjudicator's decision the last word. The justices seemed divided over the point

of habeas. Yes, and so there was a complication there, first in what habeas means, because usually habeas means the right to be released from the tension, and here the person wasn't seeking a right to be released from detention. They were seeking a right to get review from a deportation order. So that's the first case. Now, Now, for a hundred years, courts have said you can use habeas to seek review of a deportation order. So it would be a major change of the court says no, no, no, no,

that's not habeas. Habeas is just to be released from the tension. So that would be a huge change. But that might be something that this court considers. But more importantly than that, the larger issue in this case that seems to be the more conventional issue is whether this review is permitted by law. When the Congress wrote specifically that there is a clause in the law that says, if somebody is denied their credible fear adjudication, then they

don't get any habeas corpus reviews. So the Congress wrote that that was their intention. And so what the Supreme Court is grappling with is is that constitutional to deny that review? Could Congress actually have done that or did Congress act unconstitutionally? From the oral arguments, does it appear that justices are divided over this right? I mean, we know that there are four justices that are absolutely not comfortable with a scheme that has no mechanism for courts

to correct even the most egregious of mistakes. So even if they say they lie, or they get the wrong human being involved, or anything else, there's no ability to correct that. That's what the Department of Justice is saying. And then we know that Justice is a leader and Kavana have very strong concerns about that this is not

a real habeas petition. Habeas petitions are only to release people from the tension, and so the keys are Justices Gorcis and Justices Roberts and Justice Roberts on this concept of whether they the person will prevail and have habeas rights or not. I'm not optimistic because the only court that ever recognized this right was the Ninth Circuit. Every their court had rejected this claim, and so I'm not optimistic that the court will allow this, but we will

do this. This is yet to be seen. Lee on the second case the Court heard arguments in was over whether courts can review administrative findings involving claims of torture when non citizens are deported, and Justice Samuel Alito said, all this is very complicated. Explain it to us. So there's a third case that happened this week that had to do with a person who was a criminal person who has had no right to be in the United States, but said that they could not be deported because they

were going to be tortured in their home country. And so what happens is in those cases where someone is saying that they're going to be tortured in their home country, they are actually given what's called the removal order, meaning they can be removed to any other country in the world. But the question is can they be removed to the country that they're claiming that they're going to be tortured in?

And so that this case only involved the issue of if someone is a criminal and the immigration court says you're not going to be tortured, do the federal courts get to review this? Because Congress had said that the federal courts cannot review any case involving certain very hardened criminals, no matter what. But then Congress had also written in another law that it has the ability to review all claims under the Convention against Torture. So the question is

which of these two laws governs. Is it the one that bars all claims made by people who have committed certain crimes, or is it the one that says yes.

But if what you're seeking is review of your claim that you're going to be tortured, and you're saying that the judge applied the wrong law, that case should be allowed to be reviewed, what was the questioning like, Well, the questioning was very again contentious, with Justice Soto Mayor being very concerned that even the plaintiffs were or the person who was representing the the immigrants in this case, were conceding too many points that you wanted to make

it a strong, very robust review that the courts have in this in this doctrine, and that they can review every aspect of the Convention against Torture claim and other justices were uncomfortable with this concept, like Justice Kavanaugh who tried to say, hey, look, there's laws that say that these claims can't be reviewed. And Justice Alito was there too, trying to really push these arguments that the Congress foreclosed

this review. So again we are going to be looking at Justice Roberts and Justice Course this year as to what the ultimate outcome is going to be. And very unusual, Justice Roberts did not ask any questions in this case, and in the last case that we were talking about, Justice Course, it didn't ask any questions. Now, I always wonder if that's because they don't want to telegraph the way they're thinking. I mean, I think that's part of

the reason they don't ask questions. They also may not want to interrupt the flow of what someone is trying to get accomplished, just as Roberts has said that on numerous occasions where he thinks his colleagues asked too many questions and the lawyer never even gets to make an argument. And so I know Justice Roberts is uh position on that is that he wants people to at least be able to make some kind of logical argument and not get peppered by questions all the time. But if he

has a legitimate question, he would ask it. And I think Justice Gorsege probably didn't have a question on these grounds. I think his questions were asked by all of the other justices, and I think it will be very interesting to see what he has to say on these two cases. At one point he told the assistant US listener General, sounds pretty metaphysical, counsel, It's like the Holy Trinity. What

was he referring to. Well, I think that the issue here is the fact that there is this concept that the government is trying to make, which is they're trying to say that the review is not permitted of the Convention Against Torture claim because it is the same thing as reviewing the Order of removal, and so that's all one thing, just like the Holy Trinity is supposed to be one thing, the Father, the Son, and the Holy Spirit.

That this is all one thing, the Order of removal and the CAT decision, the Convention Against Torture decision, And what the plate that was saying is no, those are separate things. We are understandably conceding that the person can be removed at this point to any country where they won't be tortured. So the removal order is valid. But the question is can the removal be effectuated to a specific country where they're going to be tortured and can

that case be reviewed? And so they're saying that's separate, that's not the same thing, and so Gorsage seems to be said, yeah, that is not the same thing, and claiming that those are the same thing found metaphysical. Thanks for being on Bloomberg Law. Leon. That's Leon Fresco, a partner to Hollandon Knight. And that's it for this edition of Bloomberg Law. Remember you can listen to all the latest legal topics in the news anytime on our Bloomberg

Law podcast. You could subscribe to the podcast or just go to iTunes or Bloomberg dot com slash podcast Slash Law. I'm June Glosso, thanks so much for listening, and remember to tune into the Bloomberg Law Show weeknights at ten pm right here on Bloomberg Radio. Thank you.