Day: February 14, 2017

DACA Recipient, Detained by ICE, Asserts 5th Amendment Violation for “Break[ing] the Promise Made to Him” Because of Grant of Lawful Presence

Daniel Ramirez was twice granted deferred action and employment authorization under DACA. On February 10, he was rounded up and detained by ICE. In a statement, the government said he was detained because he was a “self-admitted gang member.”

Most recently, in May 2016, his renewal stated: “Unless terminated, this decision to defer removal action will remain in effect for 2 years from the date of this notice.” A petition for a writ of habeas corpus on Ramirez’s behalf was filed, which argues that the detention violates the Fifth Amendment because it “breaks the promises made to him under the well-established framework of the DACA program.” The petition is signed by, among others, Ted Boutrous, Larry Tribe, and Erwin Chemerinsky. (The latter two have certainly been busy of late!).

The petition asserts that DACA creates a “reasonable expectation” that recipients will not be deported during the “specified period,” which creates a constitutionally protected interest.

In establishing and continuously operating the DACA program under a well-defined framework and highly specific criteria, the federal government created a reasonable expectation among DACA recipients that they will be able to live and work in the United States for a specified period without being subject to arrest and deportation based on their immigration status. This reasonable expectation creates constitutionally-protected liberty and property interests for DACA recipients in the benefits they enjoy under DACA: being able to live and work in the United States without fear of deportation, so long as they satisfy DACA’s requirements. See, e.g., Perry v. Sindermann, 408 U.S. 593, 601–03 (1972) (reliance on informal policies and practices may establish a legitimate claim of entitlement to a constitutionally-protected interest); see also Texas v. United States, 809 F.3d 134, 174 (2015), affirmed by an equally divided court, 136 S. Ct. 2271 (2016) (explaining that “DACA involve[s] issuing benefits” to certain applicants). And these benefits are entitled to constitutional protections no matter how they may characterized by DHS. See, e.g., Newman v. Sathyavaglswaran, 287 F.3d 786, 797 (9th Cir. 2002) (“[T]he identification of property interests under constitutional law turns on the substance of the interest recognized, not the name given that interest by the state or other independent source.”) (internal quotations omitted). Accordingly, the federal government may not arbitrarily or capriciously deprive DACA recipients of these benefits, as they have here with Mr. Ramirez.

Specifically, the liberty interest is premised on the revocable promise made by President Obama’s administration:

Here, a legitimate claim of a protected property interest exists by virtue of the promise made by the United States government to Mr. Ramirez, and those similarly situated, to adhere to the strict framework set out by the DACA program and by virtue of granting him deferred action and work authorization. And, to the best of Mr. Ramirez’s knowledge, the federal government has kept that promise until now. Where, as here, an existing framework established by the government and individual’s reasonable expectations based on that framework give those individuals benefits that they would not otherwise have, a property right to those benefits exists.

Further, the petition asserts that prosecutorial discretion is in fact “constrained” by DACA.

While DACA is premised on the exercise of prosecutorial discretion, that discretion is necessarily limited and constrained by the rules and criteria that DACA is based on and by the decision to twice grant Mr. Ramirez deferred action and work authorization. These constraints on discretion further support Mr. Ramirez’s claim of a protected property interest here.

I have been making this point for more than two years. The argument that DACA was based on pure prosecutorial discretion was always a ruse. Why? Because the policy confers lawful presence, which was more than deferred action. Remarkably, and ironically, the petition favorably cites the 5th Circuit’s decision in U.S. v. Texas.

Indeed, “Deferred action . . . is much more than nonenforcement: It would affirmatively confer ‘lawful presence’ and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already explained) eligibility for federal benefits—for example, under title II and XVIII of the Social Security Act—and state benefits—for example, driver’s licenses and unemployment insurance—that would not otherwise be available to illegal aliens.” See, e.g., Texas, 809 F.3d at 166.

I’ve seen it all. First Washington relied on the standing argument it once opposed to seek a nationwide injunction against Trump’s executive order. Now DACA supporters are relying on the exact characterization of DAPA that made it unlawful, to explain why DACA provides a judicially-enforceable right. Let me state that a different way. The 5th Circuit found that the conferral of lawful presence made the policy illegal. Now, the lawyers are relying on that conclusion to bootstrap a claim that DACA is now a constitutionally protected interest–albeit an illegal one.

To support the reliance interest, the petition cites DHS policy implementing DACA:

DHS policy provides that ICE officers who encounter individuals eligible for DACA “should immediately exercise their discretion, on an individual basis, in order to prevent low priority individuals from being placed in removal proceedings or removed from the United States.” See U.S. Dep’t of Homeland Security, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 12, 2015) (emphasis added). Consistent with this directive, Mr. Ramirez—who unquestionably meets all of the criteria for DACA—should not have been arrested or detained, and he should not be placed in removal proceedings.

But doesn’t that beg the question? Isn’t the essence of “discretion” that it does not needed to be exercised in every case? But again, we always knew discretion was a ruse. This was a blanket policy, that line officers were required to implement as a rubber stamp. So much so, the petition argues that it violates procedural due process to arrest a DACA recipient! Not exercising the “discretion” in the policy is unconstitutional.

Respondents, having knowledge that Mr. Ramirez met the criteria for DACA and was granted deferred action under the program, violated Mr. Ramirez’s procedural due process rights by arresting and detaining him.

The brief also relies DACA’s hotline bling.

As a result, hundreds of thousands of individuals applied for, and were granted, deferred action pursuant to DACA. And to Petitioner’s knowledge, the federal government has, until now, lived up to their promise. He is aware of no DACA beneficiary being subject to removal proceedings unless they had violated the criteria for receiving DACA by committing a crime. Indeed, DHS even maintains a toll-free “Law Enforcement Support Center hotline” open 24 hours a day and seven days a week, that it says DACA holders should call if they are arrested and “believe that, in light of this policy, they should not have been apprehended or placed into removal proceedings.” ( In the past, DACA holders calling this number for this reason have been promptly released and not subject to removal. (Mr. Ramirez’s counsel called this hotline and was told that they could not help.)

In response, a magistrate judge ordered the government to answer several questions, one of which directly implicates DACA:

What is the basis for his detention, given that he has been granted deferred action under the Deferred Action for Childhood Arrivals program?

I expected this issue would arise but in a different context. Zach Price explained in an editorial that it may violate Due Process for DHS to use information provided by DACA-applicants in their removal proceedings. For a more thorough study, see Price’s article in the William & Mary Law Review, titled Reliance on Nonenforcement.

However, here we have a situation where a DACA-recipient may be subject to removal, but there is no indication the government is relying on any information provided during the application process.

There is one lingering issue here which was obviated by the Supreme Court’s 4-4 affirmance in United States v. Texas: DACA is illegal. DACA is even less defensible than DAPA, because at least with DAPA, the alien must have a close familial relationship with a U.S. citizen. For DACA, there is no need to have any relation with a U.S. Citizen. I discussed the legality of DACA in the Georgetown Law Journal Online:

First, DAPA beneficiaries at least have a close kinship with a citizen or LPR child. In contrast, DACA beneficiaries need not have any familial relationship with any citizen or lawful resident.119 Second, there have been active con- gressional attempts to defeat DACA, and the program remains controversial over two years after its institution, making it a weak basis for a claim of congressional acquies- cence in deferred action.120 This is especially true because DACA was based largely on a bill that was defeated in Congress and never became law.121

If in fact DACA is illegal, then the grant of deferred action was void ab abnitio, and no due process rights can attach.

I doubt this issue will be litigated, but it does afford an opportunity to revisit the constitutionality of DACA. I have no idea how the government will handle this case. President Trump, much to my surprise, has not terminated any of the deferred action grants. Though, I suspect that after learning that a DACA recipient is an accused gang member (who knows if it’s true?), there may be more of a push to revoke deferred action grants.

Update: Ted Boutrous weighs in on Twitter.

As my reply suggests, the 5th Circuit found that DAPA was illegal because of the grant of lawful presence without any discretion. If the same framework applies to DACA, then any right Ramirez can assert is void ab abnitio. Further, OLC only upheld DACA to the extent that there was discretion. If indeed there is no discretion, such that it violates due process to remove Mr. Ramirez, then DACA cannot be lawful. Finally, the DACA memo did not discuss lawful presence; the DAPA memo did. It is unclear why this concept even applies. In any event, let’s not forget that Solicitor General Verrilli said you could strike out the “lawful presence” portion of DAPA, and it would operate in the same fashion.

Update: In further exchanges, I note that the source of the authority for “lawful presence” is found in the USCIS FAQ. Literally, government by blog post. As I discuss in my article by that title, D.D.C. held that an FAQ cannot be the source of legal authority.

As for Ted’s promise to “deploy” me, I’ll pass.

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The Ninth Circuit’s Contrived Comedy of Errors in Washington v. Trump: Part II

Cross-Posted at Lawfare

In Part I of this series, I discussed three critical errors in the Ninth Circuit’s decision in Washington v. Trump. First, the court grossly erred by treating a temporary restraining order—that contained no reasoning—as a preliminary injunction. Second, the panel offered zero analysis of the underlying statutory scheme, which is exceedingly complex and which, more importantly, informs the appropriate level of scrutiny. Third, even where Congress delegated its plenary powers to the President, thereby augmenting the executive’s inherent authority over national security, the panel still applied the strictest of scrutiny.

In Part II, below, I analyze the panel’s refusal to narrow an overbroad injunction. Once again, a study of the underlying statutory scheme could have afforded a plausible method of saving part of the order, while excising the unconstitutional portions. Next, I will critique the decision’s treatment of two leading precedents. First, the panel distinguished away with gossamer threads Kleindienst v. Mandel, which for four decades established a presumption of non-reviewability for executive decisions concerning exclusion. Second, the court misread Justice Kennedy’s concurring opinion in Kerry v. Din to establish a principle that courts can assess the President’s policy decisions for “bad faith.” Kennedy’s opinion, like Mandel before it, did no such thing; rather, courts could look only at whether individual consular officers acted in good faith, not whether the policy behind that decision was in bad faith.

As I noted yesterday, personal sentiments about this egregious order should not shade a candid assessment of precedent and constitutional law. This opinion, which enjoins a policy I personally find deeply regrettable, is itself deeply regrettable.


Entry and Admission for Lawful Permanent Residents

While Judge Robart’s injunction was narrowly reasoned, it was broadly applied. First, it enjoined the enforcement of Section 3(c) of President Trump’s January 27 executive order, which “suspend[ed] entry into the United States, as immigrants and nonimmigrants, of such persons [from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen] for 90 days.” Second, it enjoined the enforcement of Section 5(a) of the order, which immediately suspended the Refugee Admissions Program for 120 days. Third, the order enjoined Section 5(b), which would “prioritize refugee claims made by individuals on the basis of the religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Without any explanation, the court enjoined this provision even though it would not go into effect for nearly four months; the state of Washington conceded during the district court proceedings that this provision “does not necessarily require immediate injunction.” (Transcript 15).

Fourth, the order enjoined Section 5(c) which suspended the entry of “nationals of Syria as refugees” until the President determines that their entry is “consistent with the national interest.” Fifth, the court enjoined Section 5(e), which gave the government discretion to admit refugees “on a case-by-case basis” in cases where “the person is a religious minority in his country of nationality facing religious persecution.”

On its own terms, Judge Robart’s decision applied “on a nationwide basis . . . all United States borders and ports of entry.” (To support the nationwide injunction, Washington argued that immigration law had to be uniform; ironically, the state had opposed this exact argument in United States v. Texas). Judge Robart made clear that the temporary restraining order was indeed temporary, as the parties were asked to propose a briefing schedule for a preliminary injunction hearing three days later.

In the immediate aftermath of the executive order, there was widespread confusion about its effects. Many lawful permanent residents (LPRs)—that is, aliens with green cards—were denied entry to the United States. Due to their unique status, the applicability of the executive order to LPRs was not at once clear. As a threshold matter, under our immigration laws, nothing requires Congress to treat the broad class of “alien” in a single manner, nor can constitutional scrutiny be applied to the undifferentiated class of ‘aliens’ without assessing the characteristics of the discrete groups that comprise that class. Justice Stevens’s opinion for the Court in Matthews v. Diaz (1976) explains this framework:

The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; and the class of aliens is itself a heterogeneous multitude of persons with a wide-ranging variety of ties to this country.

Lawful permanent residents are fully authorized to live permanently in the United States, though they are not citizens.  LPRs have a far stronger attachment to the United States than aliens seeking admission with visas, as the presumption is that members of the latter class intend to return to their country of origin. The courts have viewed the special status of LPRs to involve certain due process rights that other aliens lack. This issue is complicated by the fact that the Due Process Clause does not have a simple on/off switch for LPRs and other types of aliens. It can best be understood as applying along a continuum. LPRs at the far end of the continuum have the strongest conceivable due process rights when seeking admission. Aliens with a less permanent attachment to the United States have, on a sliding scale, far fewer rights. Refugees, for example, who lack any visa, receive all the process they are due when their application is denied.

As relevant to our discussion, LPRs that travel abroad and return are treated differently than other aliens. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), “entry,” an important term of art, was defined as “any coming of an alien into the United States, from a foreign port or place.” 8 U.S.C. § 1101(a)(13) (1988 ed.). Notwithstanding this general definition, LPRs were afforded a special quasi-constitutional protection, that was grounded in due process. As Justice Ginsburg explained for the Court in Vartelas v. Holder, under the old regime, an LPR “could travel abroad for brief periods without jeopardizing his resident alien status.” Quoting from the Court’s 1963 decision in Rosenberg v. Fleuti, Justice Ginsburg noted that LPRs “were not regarded as making an ‘entry’” unless their trip “meaningfully interrupt[ed] . . . the alien’s [U.S.] residence.” As a result, “[a]bsent such ‘disrupti[on]’ of the alien’s residency, the alien would not be ‘subject … to the consequences of an ‘entry’ into the country on his return.” In other words, an LPR who physically entered the United States did not legally “enter” the United States unless the departure interrupted her residency.

By way of the 1996 IIRIRA, in most regards, Congress replaced the concept of “entry” with that of “admission.” However, 8 U.S.C. § 1182(f) still permits the President to “suspend the entry” (not admissibility) of “any class of aliens as immigrants or nonimmigrants” that he deems “detrimental to the interests of the United States.” This provision, drafted in 1952, does not speak of “admission.” President Trump relied on this statute to support his January 27 executive order. The interplay between these “entry” and “admission” is, frankly, complicated, but critical to understanding the applicability of the executive order to LPRs.

Under current law, “admission” is generally defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). Although the Board of Immigration Appeals determined that the Fleuti doctrine did “not survive the enactment of the IIRIRA as a judicial doctrine” with respect to this provision, elements of the case do survive: like under the old regime, not all aliens that gain physical admission to the United States have to seek “admission.” In the same section, Congress stated that an LPR “shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien” meets one of six factors. 8 U.S.C. § 1101(a)(13)(C)(i)-(vi). For example, if an LPR was “absent from the United States for a continuous period in excess of 180 days” (ii) or “engaged in illegal activity after having departed the United States” (iii), upon her return, she would have to seek admission. (In Re Collado-Munoz, 21 I. & N. Dec. 1061, 1066 (BIA 1998) (“returning lawful permanent resident who is described in sections 8 U.S.C. § 1101(a)(13)(C)(i)-(vi) of the Act shall be regarded as ‘seeking an admission’ into the United States.”)). The converse of this rule is that, as a general matter, an LPR that does not meet any of these six criteria does not seek admission upon her return to the United States.

These precedents raise a question about whether the President’s executive order, as drafted, applies to LPRs. Courts should conclude that it did not. Denying LPRs admission, without any hearing, would likely be unconstitutional. In Landon v. Plasencia, the court held that the Due Process Clause affords LPRs “a fair hearing when threatened with deportation.” 459 U.S. 21, 33-34 (1982). The avoidance canon would counsel reading the order in a way to exclude LPRs. Such a reading that harmonizes the pre- and post-IIRIRA precedents, is not only possible, but is persuasive. (This is an argument that the government could have, but did not adduce in its own defense).

Under this framework, if an LPR arrives at the border, and meets one of the six factors, he is seeking admission (under IIRIRA) and entry (under 1182(f)). If an LPR arrives at the border, and does not meet any of the six factors, he is not seeking admission (under IIRIRA), nor is he seeking entry (under 1182(f)). LPRs, who are not otherwise subject to the six inadmissibility factors, do not seek entry, and thus cannot be denied entry under 1182(f). The President’s executive order, therefore, which denies “entry” to classes of aliens, would not apply on its own terms to LPRs that are not seeking admission. This construction harmonizes the terms “entry” in 8 U.S.C. § 1182(f) and “admission” under IIRIRA, and avoids any constitutional defects with the order.

This construction is consistent with how the White House understands its own order. Three days after the order was signed, Donald F. McGahn II, Counsel to the President, announced that LPRs would not be subject to the policy. His memorandum sent to the acting Secretaries of State and Attorney General, as well as the Secretary of Homeland Security, stated, “to remove any confusion I now clarify that Sections 3(c) and 3(e) do not apply” to “the entry” of “lawful permanent residents.” McGahn instructed the secretaries to “immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order.” The memorandum offered no analysis, but is consistent with this statutory framework. Regardless of the effect of Mr. McGahn’s memorandum—I agree with the court that it is in no way binding on the government—as a statutory matter, the Executive Order is best understood not to include LPRs.


Due Process for Non-Resident Aliens

Washington’s strongest claim to relief is based on the denial of entry of LPRs who reside in the state. To the extent that LPRs are not subject to the Executive Order—or if the order was redrawn to exclude LPRs—then the Ninth Circuit would have had to reach the far more difficult question about what constitutional rights attend aliens without a permanent residency status who are seeking admission. The court attempts to fudge this point, noting that “The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens,” where “these categories of aliens” applies (presumably) to all aliens affected by the Executive Order, including refugees. This burden is contrived. No court has ever held that aliens, with status less than LPRs, that are seeking entry, have due process rights. To the contrary, in Plasencia, the Court reaffirmed that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.”

The court, however, defends its due process holding as proper even if “lawful permanent residents were no longer part of this case.” (In the event the executive order is redrawn to exclude LPRs, this fallback argument becomes critical). First, it cites the “due process rights of other persons who are in the United States, even if unlawfully.” Once an alien is within the United States, the due process clause protects her. There is no dispute about this. However, the Executive Order only concerns entry of those outside the United States. (Arriving at an airport checkpoint does not mean you are on U.S. soil quiet yet). Second, citing Plasencia, the panel refers to the due process rights of “non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart.” This argument is misleading, because the referenced portion of Plasencia refers to a “permanent resident alien”—that is, an LPR. Third, the panel wrote without any analysis, “Refugees, see 8 U.S.C. § 1231 note 8.” As commenter Asher Steinberg noted on PrawfsBlawg, this citation is in error. Section 1231 does not have a “note 8.” More likely than not, a law clerk inadvertently copied and pasted from a common string cite for “8 U.S.C. § 1231 note; 8 C.F.R. §….” Regardless of what the court intended, there is zero precedent to the effect that the Due Process Clause affords refugees outside the United States a hearing, let alone any sort of judicial review.

The fourth predicate offered by the panel warrants the closest study:

and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972).

A quick read of these twenty-two words would lead the reader to believe that the Supreme Court in 1972, as reiterated by a recent concurring and dissenting opinion, established the principle that U.S. citizens, or other American institutions, that have relationships with any alien overbroad, can assert the panoply of procedural due process rights on their behalf. This is not an accurate statement of law.


Kerry v. Din

Fauzia Din, a U.S. citizen, was married Kanishka Berashk, an Afghan national, and a former civil servant in the Taliban. Din applied for an immigrant visa for her husband. Berashk was interviewed at the U.S. embassy in Islamabad. The consular officer told him that he was inadmissible under 8 U.S.C. § 1182(a)(3)(B), which deems inadmissible aliens who had engaged in “terrorist activities.” Berashk was not given any reason for the denial beyond the citation to 8 U.S.C. § 1182(a)(3)(B). Berashk himself had no cause of action. In light of the 1972 precedent of Kleindienst v. Mandel, the husband had “no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission.” Instead, Din filed for mandamus on his behalf in the Northern District of California, and sought a “declaratory judgment that 8 U.S.C. § 1182(b)(2)-(3), which exempts the Government from providing notice to an alien found inadmissible under the terrorism bar, is unconstitutional as applied.” The Ninth Circuit, over the dissent of Judge Clifton, ruled for Din.

Before the Supreme Court, Din argued that the denial of the visa “without adequate explanation” in fact deprived her of due process of law, and “violated her constitutional rights.” The authorship of this case is complicated. Justice Scalia announced the judgment of the Court for the Chief and Justice Thomas. Justice Kennedy, joined by Justice Alito, concurred in judgment. In other words, there was no five-member majority. (At the time, I speculated that Justice Kennedy lost the majority opinion, as Justice Scalia’s concurring opinion fractured off votes). Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented.

Justice Scalia’s opinion rejected Din’s claim. Because she could not assert a “life” or “property” interest, her claim depended on the recognition of a substantive due process right to be with her husband. To the surprise of no one, Justice Scalia concluded that “no such constitutional right” exists. “Only by diluting the meaning of a fundamental liberty interest and jettisoning our established jurisprudence,” he wrote, “could we conclude that the denial of Berashk’s visa application implicates any of Din’s fundamental liberty interests.” Critically, Scalia concluded, “The legal benefits afforded to marriages and the preferential treatment accorded to visa applicants with citizen relatives are insufficient to confer on Din a right that can be deprived only pursuant to procedural due process.” As a result, the due process claim fails, because “no process is due if one is not deprived of ‘life, liberty, or property.’”

Justice Breyer’s dissent, in contrast, contended that the denial of the visas amounted to a “deprivation of [Din’s] freedom to live together with her spouse in America.” The dissent stopped short of asserting a fundamental substantive due process right, but claims that the right is significant enough to warrant procedural due process.

Justice Kennedy’s opinion, as usual, was far more nuanced. His opinion recognized that “even assuming” Din has a protected liberty interest, the “notice she received regarding her husband’s visa denial satisfied due process.” Kennedy’s opinion stressed that the Court did not decide “whether a citizen has a protected liberty interest in the visa application of her alien spouse.” Contrast this assertion with the Ninth Circuit’s statement that “applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” The word “might” does not even come close to bearing the weight that the panel places on it. Justice Kennedy’s concurring opinion specifically stated that the Court did not reach the exact issue the Ninth Circuit said “might” prevail. Even then, Justice Kennedy found that the minimal notification given to Din (that her husband was inadmissible, without any further explanation) satisfied due process.


Kleindienst v. Mandel

Justice Kennedy’s narrow construction is reaffirmed by his recitation of Kleindienst v. Mandel, the other precedent relied on by the Ninth Circuit panel. The 1972 case involved college professors who invited Dr. Ernest Mandel, a self-professed Marxist, to speak at Stanford University. After Mandel was denied a visa—in light of his advocacy for “world communism”—he petitioned the Attorney General for a waiver. The Attorney General declined, citing the fact that Mandel had abused temporary visas on past trips to the United States. The Stanford professors brought suit, asserting a First Amendment right to “‘hear his views and engage him in a free and open academic exchange.’” The denial of the waiver, they asserted, violated this right. (Not a single word in Mandel explains why the professors suffered an Article III injury for purposes of standing; it is difficult to reconcile this decision with later cases such as Lujan and Clapper).

To the extent that U.S. citizens can assert due process rights on behalf of foreign nationals, Kennedy explains, the judicial inquiry is limited to whether the “Government had provided a ‘facially legitimate and bona fide’ reason for its action.” He added that “[o]nce this standard is met, “courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against” the constitutional interests of citizens the visa denial might implicate.” Kennedy recognized that imposing a more exacting scrutiny would with respect to the government “‘refusing a [visa] to the particular applicant,’” would usurp “a nuanced and difficult decision Congress had ‘properly … placed in the hands of the Executive.’”  What process was due for Mandel? The disclosure of his “abuse of past visas” was sufficient, and that “ended [the Court’s] inquiry.”

Applying the Mandel framework to Din, Justice Kennedy concludes that the husband’s denial of a visa was “based upon due consideration of the congressional power to make rules for the exclusion of aliens, and the ensuing power to delegate authority to the Attorney General to exercise substantial discretion in that field.” The only process that was due was the “consular officer’s determination that Din’s husband was ineligible for a visa [as] controlled by specific statutory factors” of § 1182(a)(3)(B), which “establish[ed] specific criteria for determining terrorism-related inadmissibility.” In this case, the consular officer told the husband that he did not satisfy the statute’s requirements. In conclusion, Justice Kennedy wrote, the “Government’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.”


“Look Behind”

However, as usual, Justice Kennedy left some wiggle-room in his opinion. As he explained in his opinion in Din, in Mandel, the Attorney General had “nearly unbridled discretion” about issuing waivers. (Here, the word “nearly” may provide significant wiggle-room). In contrast, “§ 1182(a)(3)(B) specifies discrete factual predicates the consular officer must find to exist before denying a visa.” Here, the husband admitted that he worked for the Taliban government, “which, even if itself insufficient to support exclusion, provides at least a facial connection to terrorist activity.” In the general course, courts cannot “look behind” the denial of the visa for “additional factual details beyond what its express reliance on § 1182(a)(3)(B) encompassed.” In other words, normally, courts are not permitted to inquire about what additional facts went into the officer’s denial of the visa, beyond what the statute requires. However, Justice Kennedy went beyond the holding of Mandel, finding that presumption is flipped upon an “affirmative showing of bad faith on the part of the consular officer.” In such cases, the courts can “look behind” the consular officer’s decision. This nebulous opinion raises four distinct questions which will influence the outcome of Washington v. Trump. Court watchers would be well-served to carefully divine what it can from these entrails.

First, is Din distinguishable from Washington because unlike § 1182(a)(3)(B), § 1182(f) does not provide specific “discrete factual predicates” to support the denial of entry? Under the latter provision, when the President determines that a class of aliens is “detrimental” to the interests of the United States, all members of that class are denied entry. During oral arguments, Judge Michelle Friedland asked Justice Department attorney August E. Flentje about this distinction. In both Mandel and Din, the judge began, there were “specific statutes by Congress that set forth specific criteria that were then applied factually.” Judge Friedland asked, “[the] President is not applying any specific criteria from Congress [with the executive order] is he?” Flentje replied that indeed the President was indeed applying the statutory factors set in § 1182(f).

We should not overstate how “specific” the statute in Din was. The husband was denied a visa because he “engaged in a terrorist activity.” That phrase is not defined and gives the government wide latitude to determine what was a “terrorist activity.” There is no requirement of a conviction or arrest; a mere inkling would suffice. A proclamation that an alien is “detrimental to the interests of the United States” is indeed more capacious, but as a matter of degree, not of kind. Rather than addressing this point, and arguing that § 1182(f) did not provide adequate guidance, the Ninth Circuit instead vaults over these meaty questions, and gerrymanders the precedents, which allows it to distinguish away Mandel with gossamer threads:

In fact, the Mandel standard applies to lawsuits challenging an executive branch official’s decision to issue or deny an individual visa based on the application of a congressionally enumerated standard to the particular facts presented by that visa application. The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President’s promulgation of sweeping immigration policy.

The Attorney General’s decision in Mandel, like the decisions here, is based on “the application of a congressionally enumerated standard to the particular facts presented by that visa application.” Section 1182(f) permits the President to deem classes of aliens from certain countries as “detrimental” to the interests of the United States. Then, a consular official assesses “the particular facts presented by that visa application”—that is, whether an alien is a national of one of the seven nations specified by the proclamation. If so, entry is denied. The situations are factually analogous. The panel, however, disregards these important nuances in Mandel and Justice Kennedy’s concurring opinion. (The judges also charged the Justice Department with “omit[ting] portions of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority.” The acting solicitor general did no such thing.).

Second, is Din limited to individualized decisions made by consular officers, or does it apply to wide-ranging policies adopted by the President? Mr. Flientje made this point cogently during his arguments: “Whatever Din says about looking at consular decision making does not suggest we look behind national security determination made by the President, where the four corners of that determination are based on the congressional determination that the countries at issue are of concern.” (1:00:30). He may as well have been reading from Justice Kennedy’s opinion. At every step in the concurrence, the focus was not on the policy itself, but the individual officer who made the decision. Judge Friedland interrupted Flientje, and said, “I thought you were using Din and Mandel as main authority for unreviewability, and so now you are saying those are distinguishable. I’m a little confused if you are relying on those cases or not.” (1:01:00). Her comment is confusing. Flientje was specifically referring to the boundaries imposed by Kennedy’s concurring opinion. The DOJ lawyer replied, “We are definitely relying on them for the limits that Court’s review these types of issues.” Further, as I noted in my post yesterday, this question implicates the classic distinction between Londoner and Bi-Metallic. If due process now attends to broad policy statements, and not just individualized determinations, large swaths of the administrative state are now susceptible to attack.

Third, does the “bad faith” inquiry focus on the subjective motivations of the Executive branch at large, or is it confined to the individual consular official that acts in “bad faith?” Prior to Washington v. Trump, the courts interpreted Mandel to focus on the latter definition. For example, in Bustamante v. Mukasey, the Ninth Circuit defined bad faith under Mandel in terms of whether consular officer “did not in good faith believe the information he had.” In that case, the plaintiffs alleged that an applicant “never has been a drug trafficker,” as the officer concluded, but they could not demonstrate that the consular officer knew his report was false. “It is not enough to allege that the consular official’s information was incorrect,” the panle held. The “bad faith” analysis is limited to its application by an individual consular officer.

In Din, Justice Kennedy asserted that providing the husband with the minimal information it did was a “facially and legitimate bona fide reason” for denying the visa under § 1182(a)(3)(B). There was no assertion that the consular officer knew the information was false; indeed the information was conceded as accurate. With respect to Washington v. Trump, the denial of entry to an alien from one of the seven nations would likewise be “facially and legitimate bona fide reason,” specifically because it is done pursuant to § 1182(f). There is no allegation of a deviation from the policy in bad faith by a rogue consular officer. One could imagine a situation where, under the executive order, a consular official modifies a visa application, such that a Pakistani national is incorrectly listed as an Iranian national, and is thus denied entry. That would be an exercise of bad faith.  However, simply denying a visa because of a person’s nationality—an accurate fact—would not be in bad faith under the proclamation issued pursuant to § 1182(f) .

What is most perplexing about the Ninth Circuit’s opinion, which was joined by Judge Clifton, is that Judge Clifton dissented from the panel decision in Din. In that case, he stated succinctly that the “good faith” analysis was limited to the behavior of the “consular official.” (718 F.3d at 869). He said nothing about the subjective motivations of the policy maker. Rather, the denial was “based on law” and “the reason was at least “facially legitimate.” Specifically, Judge Clifton wrote, “The factual basis of the consular’s decision is not within our highly limited review.” In other words, the manner in which the consular official denied the visa, that is “based on law,” is beyond the ken of the courts. The Supreme Court ultimately vindicated his dissent!  It is unclear how Judge Clifton can reconcile his opinion in Din with the per curiam opinion in Washington v. Trump.

There is a fourth question that I suspect will ultimately control: even assuming that process is due, then what process is due? Justice Kennedy states, without equivocation, that the only process Din was due was the notification that her husband was denied a visa based on § 1182(a)(3)(B). Citing the importance of Congress’s control over national security concerns, Justice Kennedy concluded that “notice given was constitutionally adequate, particularly in light of the national security concerns the terrorism bar addresses.” Further, he noted, “respect for the political branches’ broad power over the creation and administration of the immigration system extends to determinations of how much information the Government is obliged to disclose about a consular officer’s denial of a visa to an alien abroad.” Regardless of what is divined from the entrails, this analysis portends the result in Washington: if an alien is denied entry, with a notice stating that the denial is due to § 1182(f), he is afforded all the process that he is due. No more is needed.

There was not even the slightest hint in Din that aliens overseas are entitled, in the words of the Ninth Circuit’s panel, to “notice and a hearing prior to restricting” her “ability to travel. This holding is made up out of whole cloth. Even if the aliens covered by the Executive Order are protected by the Due Process Cause—a striking proposition with respect to refugees in particular, who have no connection to the United States—then there is no conceivable requirement that they be afforded a hearing before being denied entry. A consular stamp that says “denied under § 1182(f)” will provide all the process that is due. The end result of the court finding that a due process right attaches yields the same end result: the President can deny entry through a consular notification that the alien is barred by his proclamation under § 1182(f). Here, the panel opinion collapses under its own weight.

Certainly, Justice Kennedy can change his mind on the next case, but we should not pretend that his Din concurring opinion provides a clear, inescapable route to invalidating the executive order.

This two-part series will be published later this week as Josh Blackman, The Ninth Circuit’s Contrived Comedy of Errors in Washington v. Trump, 95 Tex. L. Rev. See Also __ (forthcoming 2017). I will post a link on my blog,, when it is available for download.

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ConLaw Class 10 – The Affordable Care Act (“Obamacare”)

Class 10 – 2/14/17

The Affordable Care Act (“Obamacare”)

  • The Affordable Care Act (300 – 301)
  • NFIB v. Sebelius: Commerce, Necessary and Proper, and Taxing Power (301 – 334).
  • NFIB v. Sebelius: The Spending Power (334 – 341)
  • Excerpt (Foreword and Introduction) from Unprecedented: A Constitutional Challenge to Obamacare

The lecture notes are here.

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Prop1 Class 10 – Estates II Fee Simple, Continued

Class 10 – 2/14/17

Estates II

Fee Simple, Continued

  • Inheritances, 219-221
  • Notes and Problems, 221-222
  • Fee Tail, 222-224 (skim)

The Life Estate

  • The Life Estate, 226
  • White v. Brown, 227-232
  • Notes, 232-233
  • SKIP Valuation of Life Estates and Remainders, 234
  • Baker v. Weedon, 235-239
  • Notes, 239-241 (skip note 4 on waste). 


The lecture note are here.

This diagram illustrates the life estate.


Here is Jessica Lide’s will:

April 19, 1972

I, Jessie Lide, being in sound mind declare this to be my last will and testament. I appoint my niece Sandra White Perry to be the executrix of my estate.
I wish Evelyn White to have my home to live in and not to be sold.
I also leave my personal property to Sandra White Perry. My house is not to be sold.

Jessie Lide (Underscoring by testatrix)

Here is a picture of Jessica Lide’s home. Jessica Lide is on the right, Sandra White is in the middle.


 Here is the current life expectancy table. If you were born in 1984, your life expectancy is 74.56

Here is the will from the Weedon case:

Second; I give and bequeath to my beloved wife, Anna Plaxico Weedon all of my property both real, personal and mixed during her natural life and upon her death to her children, ifshe has any, and in the event she dies without issue then at the death ofmy wife Anna Plaxico Weedon I give, bequeath and devise all of my property to my grandchildren, each grandchild sharing equally with the other.

Third; In this will I have not provided for my daughters, Mrs. Florence Baker and Mrs. Delette WeedonJones, the reason is, I have given them their share ofmy property and they have not looked after and tared for me,in the latter part ofmy life.

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