Author: Kevin Johnson


Thanks and Signing Off!

I have very much enjoyed my chance to guest blog on Concurring Opinions this July.  My posts have touched on a variety of topics (the Sotomayor nomination, racial profiling, criminalizing homelessness, immigration law and reform) related to race, class, and civil rights in the modern United States.   For future posts on similar subjects, feel free to visit me at the ImmigrationProf blog.  I have learned much from the comments and appreciate the interest in the posts.  THANKS!


A Note on Comprehensive Immigration Reform

For several years, “comprehensive” immigration reform has been discussed in the U.S. Congress and among the general public.   Supporters contend that enforcement-only measures — such as extending the border fence, increasing the number of Immigration & Customs Enforcement officers, efforts to increase deportations, etc. — will not address the true causes of immigration, especially the thirst of the American economy for relatively inexpensive labor.   Although “comprehensive” immigration reform has meant many things to many people, reform proposals often include a regularization program for certain group of undocumented immigrants (i.e., the dreaded “amnesty”), some kind of guest worker program supported by agricultural and other employers, and increased immigration enforcement measures.  Some proposals also have included increasing the number of visas to eliminate long lines in certain visa categories and increased employment visas. 

In the spring of 2006, hundreds of thousands of people — U.S. citizens as well as immigrants — marched in cities across the United States, protesting the tough-on-immigrants Sensenbrenner bill passed by the U.S. House of Representatives in December 2005.  Two U.S. Senators, including now-President Barack Obama, participated in the marches.

President Obama long has supported comprehensive immigration reform.  Supporters of reform were buoyed by his election, feeling that comprehensive immigration reform just might finally be on the horizon.  Well, it just may — or may not — be.

Immigration reform is politically difficult in the best of times — and these most definitely are not the best of times economically in the United States.  Although some members of Congress — Congressman Luis Gutíerrez immediately comes to mind, continue to push for immigration reform, the economy and health care reform now seem to dominate the Congressional legislative agenda.

As the old Brooklyn Dodgers slogan (“Wait until next year!”) went, some members of the Obama administration have argued for restraint and to wait until next year.  But, next year is an election year in Congress.  Enacting legislation on a contentious issue that touches on volatile issues of race and class, seems unlikely in an election year.

At the same time, the Obama administration seems devoted to pursuing more and more immigration enforcement measures.  For discussion of the latest measure, click here.  Department of Homeland Security Secretary Janet Napolitano does not seem to have found an enforcement measure that she does not like.   The political calculus  appears to be that, by so doing, the administration will gain the public trust on enforcement and then be in a better position to seek immigration reform that benefits immigrants.  This strategy was pursued — very unsuccessfully — by the Bush administration — more and more enforcement.  We saw infamous workplace raids in New Bedford, Massachusetts and Postville, Iowa, record levels of deportations year after year, aggressive positions in the courts (while always disputing the court’s jurisdiction), and the like.   The Bush administration ended up with more (and more) enforcement and no immigration reform.

This is precisely the risk that the Obama administration runs.  As it fashions and implements more and more immigration enforcement measures, it may never be able to push balanced immigration reform through Congress.  And delay is dangerous because there is always some reason to put off a national debate on a controversial issue.

Hopefully, the Obama administration knows what it is doing politically on immigration.  Latinos, immigrant rights advocates, and employers have been patient for now.  But, they all have seen what happens when immigration is put off until the second term of a Presidency.  As President Bush acknowledged, such delay was a mistake before — and, many think, a mistake now.


On Criminalizing Poverty

As we all know, these are tough economic times.  Unemployment is up.  Homelessness is too.  In Sacramento, tent cities along the rivers sprung up months ago and made the national news.  Police have generally asked people to “move on.”  Not since the so-called Hoovertowns of the Great Depression have we seen anything quite like this.

The National Law Center on Homelessness & Poverty recently released a new report, Homes Not Handcuffs: The Criminalization of Homelessness in U.S. Cities, jointly with the National Coalition for the Homeless. The report focuses on city measures that target homeless persons, including laws that make it illegal to sleep, eat, or sit in public spaces.  With information about 273 cities across the United States, Homes Not Handcuffs ranks the top 10 U.S. cities (“The Ten Meanest Cities”) with what the report concludes are the worst practices in criminalizing homelessness and discusses the policy, constitutional and human rights implications of criminalization.  The report  also offers examples of more constructive approaches adopted by some cities.

I am sad to say that my hometown of Los Angeles (see the LA Times acknowledgement of the “slam” on the City of Angels) is listed as number 1 and Berkeley, California (I am a Cal alum) is number 10.   San Francisco, where I practiced law, is no. 7.  Florida (St. Petersburg (2), Orlando (3), Gainseville (5), and Bradenton (9)) has four cities in the top 10.

Homes Not Handcuffs raises the important question of what role, if any, law should play in dealing with the homeless.  What do 9and should) we as a society do for the unfortunate members of our society who cannot afford a place to live?  Tell them to “move on”?  Cite them for vagrancy or some such crime?


Harvard’s Henry Gates a Victim of Racial Profiling?

Funny, I blogged yesterday about racial profiling in law enforcement.  Now, reports of the Cambridge Police Department’s arrest of prominent African American Professor Henry Gates, who teaches at Harvard, for his “loud and tumultuous behavior” have sparked cries of racism and racial profiling.  For the latest in this story, click here.

Here is a “”Brief Statement on Behalf of Professor Henry Louis Gates, Jr.” from Harvard Law Professor Charles Ogletree:

This brief statement is being submitted on behalf of my client, friend, and colleague, Professor Henry Louis Gates, Jr. This is a statement concerning the arrest of Professor Gates. On July 16th, 2009, Professor Henry Louis Gates, Jr., 58, the Alphonse Fletcher University Professor of Harvard University, was headed from Logan airport to his home at 17 Ware Street in Cambridge after spending a week in China, where he was filming his new PBS documentary entitled “Faces of America”. Professor Gates was driven to his home by a driver for a local car company. Professor Gates attempted to enter his front door, but the door was damaged. Professor Gates then entered his rear door with his key, turned off his alarm, and again attempted to open the front door. With the help of his driver they were able to force the front door open, and then the driver carried Professor Gates’s luggage into his home.

Professor Gates immediately called the Harvard Real Estate office to report the damage to his door and requested that it be repaired immediately. As he was talking to the Harvard Real Estate office on his portable phone in his house, he observed a uniformed officer on his front porch. When Professor Gates opened the door, the officer immediately asked him to step outside. Professor Gates remained inside his home and asked the officer why he was there. The officer indicated that he was responding to a 911 call about a breaking and entering in progress at this address. Professor Gates informed the officer that he lived there and was a faculty member at Harvard University. The officer then asked Professor Gates whether he could prove that he lived there and taught at Harvard. Professor Gates said that he could, and turned to walk into his kitchen, where he had left his wallet. The officer followed him. Professor Gates handed both his Harvard University identification and his valid Massachusetts driver’s license to the officer. Both include Professor Gates’s photograph, and the license includes his address.

Professor Gates then asked the police officer if he would give him his name and his badge number. He made this request several times. The officer did not produce any identification nor did he respond to Professor Gates’s request for this information. After an additional request by Professor Gates for the officer’s name and badge number, the officer then turned and left the kitchen of Professor Gates’s home without ever acknowledging who he was or if there were charges against Professor Gates. As Professor Gates followed the officer to his own front door, he was astonished to see several police officers gathered on his front porch. Professor Gates asked the officer’s colleagues for his name and badge number. As Professor Gates stepped onto his front porch, the officer who had been inside and who had examined his identification, said to him, “Thank you for accommodating my earlier request,” and then placed Professor Gates under arrest. He was handcuffed on his own front porch.

Professor Gates was taken to the Cambridge Police Station where he remained for approximately 4 hours before being released that evening. Professor Gates’s counsel has been cooperating with the Middlesex District Attorneys Office, and the City of Cambridge, and is hopeful that this matter will be resolved promptly. Professor Gates will not be making any other statements concerning this matter at this time.


Profiling a Problem in Europe Too

I previously blogged about the problem of racial profiling in the United States; the comments got so heated at a personal level that our blogmeister Dan Solove decided to remove them.  Let me give it another try.

 The good news in terms of racial profiling, I guess, is that we are not alone.  The Council for Europe Commissioner for Human Rights reports, based on a survey conducted by the European Union Agency for Fundamental Rights, that “[m]embers of minorities are more often than others stopped by the police, asked for identity papers, questioned and searched.  They are victims of `ethnic profiling’, a form of discrimination which is widespread in today’s Europe.  Such methods clash with agreed human rights standards.  They tend also to be counter-productive as they discourage people from cooperating with Police efforts to detect real crimes.”  The same has been said in the United States in terms of racial profiling in criminal law enforcement, immigration enforcement, and the “war on terror.”


Judging Sonia Sotomayor?

The confirmation hearings for Judge Sotomayor before the U.S. Senate Judiciary Committee have concluded.  Her confirmation now appears to be a foregone conclusion.

As the smoke clears, here are five things that I took away from the hearings:

1. Stephen Carter’s book title “The Confirmation Mess,” still succinctly summarizes the confirmation process for a Supreme Court Justice. The process – with Senators asking questions without listening to answers and nominees cowed from fully developing their judicial philosophies — is an incredible exercise in tedium and wastefulness. We learn more about the nominee from how he or she responds to the circus-like atmosphere than we do from the substance of the answers to the questions.

2. Latinos still face hurdles in being fully accepted in the public sphere in U.S. society. The Senators seemed flummoxed at times with the proper treatment to afford a Latino candidate given their lack of experience with one as a nominee for the highest Court in the land. For example, Senator Coburn’s reference to Judge Sotomayor having some “splaining to do,” a reference to a line of a stereotypical Cuban-American (not Puerto Rican) sitcom star from the 1960s, amazes me. (If I were to say something like this to a job applicant, an employment discrimination claim would soon be coming.). Similarly, the persistent demonization of the Puerto Rican Legal Defense and Education Fund, a mainstream Latino civil rights organization, by the Republican members of the Judiciary Committee was deeply troubling. With an African American candidate, can we imagine a reference to Sanford & Son or attacks on the NAACP Inc. Fund (or the Federalist Society, the arch-conservative group that promoted Justices Scalia and Alito as well as Chief Justice Roberts) ? I think not. Even the attacks on Thurgood Marshall in 1967 were more subtle in certain respects than those on Judge Sotomayor.

3. Judge Sotomayor is a judge in the mainstream of American judges. She judges by the book. From the beginning of the hearings when she emphasized her commitment to the rule of law and her view of the rule of law as applying the law to the facts, not making law, Judge Sotomayor showed that, like previous nominees, she knows and accepts the appropriate role of judges. Her 17 years of judging demonstrate that Judge Sotomayor is a “judge’s judge,” a characteristic that none of the Senators placed in question in the four days of hearings.

4. Judge Sotomayor has the temperament to be a Justice on the U.S. Supreme Court. Tapping into long-held stereotypes of the “hot blooded” Latino (like Ricky Ricardo, see above), some questioned Judge Sotomayor’s judicial temperament. The only evidence of any temperament issues was that she was an aggressive questioning at oral argument and a handful of lawyers criticized her in anonymous evaluations. The fact that Judge Sotomayor could put up with four days of questions, many bordering on the ridiculous, while taking each and every one as seriously as the last, demonstrated a patience that, in my estimation, was most impressive. She was unflappable in answering the questions, refused to allow some of the Senators to put words in her mouth, and stuck to her guns. It was a most impressive performance. And, I have little doubt that she will be more generous to advocates in the Supreme Court than some sitting Justices.

5. When she is confirmed, the nation as a whole should be proud that Sonia Sotomayor – and her incredible life story – made it to the U.S. Supreme Court.


A Note on “Alien” Terminology in the Public Discussion of Immigration and Immigrants

Yesterday, USA Today’s Emily Bazar led an interesting discussion between representatives of NUMBERS USA, a group seeking to reduce immigration, and National Council for La Raza, which seeks to protect the rights of immigrants, about the appropriate use of terminology when referring to undocumented immigrants, “aliens”, “illegal aliens”, immigrants, human beings, etc.  A video of the discussion — debate really — can be viewed by clicking th elink above.

Just to be clear, the omnibus federal immigration statute, the Immigration & Nationality Act, does not generally employ the term “illegal alien.”  When that phrase is used in the public context, it usually betrays a particular view about undocumented immigration in the speaker.  Guss what that view might be?   “Illegal aliens” has grown to be a deeply pejorative term in the public discourse. 

Today, “illegal aliens” often is used as code for the stereotypical undocumented Mexican immigrant and sometimes even persons of Mexican ancestry generally.  Importantly, the best available estimates are that roughly 60 percent of the undocumented immigrant population is from Mexico (and thus 40 percent is not).

in contrast to “illegal alien,” the term “alien” is effectively the DNA of the INA, with the statute defining the admissions and removal criteria for “aliens,” i.e., persons who are not U.S. citizens or nationals.  Still, the use of the term “alien’ in public discussions of immigration tends to have a distancing and dehumanizing impact.  To paraphrase  Alexander Bickel, it is far easier to deny rights to a noncitizen than a person. 

For discussion of the terminological question in some detail, see  Mai Ngai, Impossible Subjects:  Illegal Aliens and the Making of Modern America (2004) and Kevin R. Johnson, Aliens and the U.S. Immigration Laws:  The Social and Legal Construction of Nonpersons, 28 U. Miami Inter-American Law Review 263 (1996-97).


Sotomayor, Saenz, and the Vilification of Latino Civil Rights Organizations

At long last, the Sonia Sotomayor confirmation hearings begin tomorrow.  It should be interesting but do not expect high drama.  No “smoking gun” demonstrating Judge Sotomayor’s “judicial activism” has been uncovered for Republicans to wave.  Instead, the opposition is trying to bring in some drama with the testimony of Frank Ricci and Ben Vargas, a Puerto Rican, two plaintiffs in the New Haven firefighters case.

 To me, one of the amazing parts of the confirmation process has been the treatment afforded relatively mainstream Latino civil rights organizations that Judge Sotomayor had affiliations with,  National Council for La Raza and the Puerto Rican Legal Defense and Education Fund (now known as Latino Justice).  Both have been nothing less than tarred and feathered for in effect being racist and, at least according to former member of Congress (and anti-immigrant zealot) Tom Tancredo in talking about NCLR, the Latino equivalent of the KKK.  As Sherrilyn Ifill has written, the making of such wild accusations by mainstream politicians reveals how vulnerable Latinos are in U.S. society.  Could anyone see similar claims made against the NAACP Inc. Fund?

Judge Sotomayor’s confirmation seems assured.  However, this is not the first time that affiliations with a Latino civil rights groups were used to try to damage one of President Obama’s nominees.  Earlier this year, the administration declined to appoint Tom Saenz, formerly the head of litigation at the Mexican American Legal Defense & Educational Fund (MALDEF), to head the U.S. Department of Justice’s Civil Rights Division reportedly because of his cutting edge (and successful) litigation at MALDEF to protect the rights of immigrants and day laborers.  As the N.Y. Times opined, Saenz would have been an excellent head of the Civil Rights Division and it was a shame for the nomination to be scuttled because of his civil rights litigation at MALDEF. 

As a member of the board of directors of MALDEF, I was sad to see MALDEF’s good llitigation work be used to torpedo a nomination for an extremely important civil rights post.  I am proud to be on the board of an organization that is bringing litigation seeking to protect the rights of Latinos in employment, voting, immigration, education, and housing.  It is groups like MALDEF that call for action in cases like the hate killing of Luis Ramirez in Shenandoah, Pennsylvania last year.

 Hopefully, the smear tactics that we saw in the Saenz nomination and early on in the Sotomayor nomination, will not reappear in the future.   Indeed, the quick retreat of mainstream Republicans from the early attacks on Judge Sotomayor suggest that some are recognizing the dangers of alienating the Latino vote.   However, I will feel better when groups like MALDEF, Latino Justice, and National Council for La Raza are viewed as positive  contributors to civil rights and justice in U.S. society, rather than vilified as racist, otherwise outside the mainstream, and part of the problem.


The Supreme Court’s Immigration Cases From Last Term

Last Term, the U.S. Supreme Court decided four immigration-related cases. The Court rarely takes so many immigration cases, which suggests that it – like the general public – views immigration as an important issue. In the four decisions, the Court also addressed some conflicts on immigration law among the circuits.

The U.S. government lost three out of four of the immigration cases before the Supreme Court. This is a relatively low win percentage for the government in immigration cases, especially in light of the fact that the proverbial deck is often stacked against noncitizens — the immigration laws are not particularly generous to immigrants and the courts frequently afforded broad deference to the immigration bureaucracy. It thus at first glance may seem surprising in some respects that the Roberts Court sided with noncitizens in 75 percent of the cases. A closer look reveals that the Supreme Court pretty closely followed the law and precedent and rejected positions of the Bush administration that pushed the limits.

Identity Theft

The U.S. government has increasingly used identity theft statutes as a tool against undocumented immigrants. The Supreme Court limited the U.S. government’s power to use that tool in Flores-Figueroa v. United States. The decision below, which held for the United States, was unanimously reversed and remanded in an opinion by Justice Breyer. The Court held that prosecutors must prove that defendants knew that fraudulent Social Security numbers or other documents they used belonged to a real person as opposed to an identity being fabricated. In a fairly routine manner, the Court interpreted the language of the statute and in effect applied the traditional rule of lenity, resolving statutory ambiguities in favor of the criminal defendant.

Flores-Figueroa v. U.S. clarifies what federal prosecutors must prove in order to obtain a conviction for criminal identity theft under federal law. The Bush administration had increasingly – and aggressively — used identity fraud criminal charges in immigration enforcement. An infamous example is the raid on the Agriprocessors kosher food plant in Postville, Iowa in May 2008, in which hundreds of undocumented workers faced criminal identity theft charges (as opposed to simply being deported, as had generally been the past practice in immigration raids). The Court resolved the conflict that had emerged in the federal appellate courts over the government’s burden of proof in aggravated identity theft cases.

Stays of Removal Pending Appeals

Noncitizens facing deportation who lose appeals of removal orders in the Board of Immigration Appeals often seek a stay of removal while an appeal is pending in the court of appeals. The question in Nken v. Holder was whether 1996 reforms to the immigration statute continued to permit such stays, which until that time had been routinely granted. As a practical matter, many appeals would be abandoned or mooted if the noncitizen were deported.

Chief Justice Roberts, in a workmanlike opinion, wrote for the 7-2 majority:

“This case involves a statutory provision that sharply restricts the circumstances under which a court may issue an injunction blocking the removal of an alien from this country. The Court of Appeals [for the Fourth Circuit] concluded, and the Government contends, that this provision applies to the granting of a stay by a court of appeals while it considers the legality of a removal order. Petitioner disagrees, and maintains that the authority of a court of appeals to stay an order of removal under the traditional criteria governing stays remains fully intact, and is not affected by the statutory provision governing injunctions. We agree with petitioner, and vacate and remand for application of the traditional criteria.” In so holding, the Court resolved a split between the Fourth and Eleventh Circuits, on one side, and the Second, Third, Fifth Sixth, Seventh, and Ninth Circuits on the other. Justice Alito, joined by Justice Thomas, dissented, emphasizing that “[t]he Court’s decision nullifies an important statutory provision that Congress enacted when it reformed the immigration laws in 1996.”
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Racial Profiling Still Pervasive in United States: Does Anyone Care?

Remember when racial profiling was an evil that President Bill Clinton, George W. Bush, and then-Attorney General John Ashcroft claimed would soon be ended.  In 2000, Democratic candidates Al Gore and Bill Bradley sparred in a debate in the Apollo Theater in Harlem about who as President would be tougher on racial profiling.

The basic criticism of racial profiling is simple.  A police stop for “Driving while  Black” or “Driving while Brown” was unaccaptable as well as unlawful.  Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities.  Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come.  (The Supreme Court in Whren v. United States (1996) had undercut efforts to end racial profiling in traffic stops through the Fourth Amendment and left a tootless Equal Protection remedy in its place.) Many police departments created policies on profiling; others began to collect  data on traffic stops.  A much-publicized report from New Jersey revealed disparities in the searches of the vehicles of minorities.

Were the promises to end racial profiling kept? Apparently not.  A report released by the American Civil Liberties Union and the Rights Working Group at the end of June concluded that widespread racial profiling by law enforcement remains a pervasive problem throughout the United States.

What happened?  The persistence of racial profiling should be no real surprise.  As we all know, law enforcement is difficult to reform.  Moreover, the tragic events of September 11, 2001 led to a resurgence of support, including by some prominent academics,  for the profiling of Arabs and Muslims in the newly-proclaimed “war on terror.”  Special registration and a whole plethora of immigration and other security measures targeted Arab and Muslim noncitizens.

Given the reliance on statistical probabilities based on race, national origin, and religion in the “war on terror,” it proved to be difficult to continue the full court press on eradicating racial profiling in ordinary criminal law enforcement.  The so-called logic of profiling allows statistical probabilities to be considered in terrorism and criminal law enforcement.  The result was that the  challenge to racial profiling ebbed.

It should be no surprise that, with the resurgence in racial profiling in the “war on terror,” little has been accomplished since 2001 in the efforts to end racial profiling in ordinary criminal law enforcement.

And the problem of profiling is not limited to the “war on terror” and ordinary criminal law enforcement.  Racial profiling also taints immigration enforcement, with many Latinos and Asian Americans (citizens as well as immigrants) claiming that they are too often profiled by immigration authorities for being undocumented immigrants.  This is a particular problem in the Southwest in the U.S./Mexico border region.  The Supreme Court has sanctioned this practice.  In the 1975 decision of United States v. Brignoni-Ponce, the Court authorized the consideration of “Mexican appearance” as one factor in an immigration stop.  Since that decision, “Mexican appearance” has come to dominate immigration enforcement.  Latinos regularly complain of profiling — as well as other forms of abuse — at the hands of Immigration and Customs Enforcement.   Click here for analysis of the Brignoni-Ponce decision.

The bottom line is this.  Racial profiling remains central to law enforcement in the United States.  Is there the political will to eradicate racial profiling?   Or is the maintenance of racial profiling on the streets of America another collateral impact of the nation’s “war on terror”?