Interesting student note on due process and asylum seekers

For those interested in the contested application of the Constitution to aliens seeking admittance and asylum, I recommend reading a note recently published in the Fordham Law Review. “A Constitutional Case for Extending the Due Process Clause to Asylum Seekers: Revisting the Entry Fiction after Boumediene,” 87 Fordham L. Rev. 289, by Zainab A. Cheema.

The note examines the continuing vitality of the “entry fiction,” the idea that even though an alien is physically present in the United States, they remain outside the border for legal purposes if they have not been granted admission or parole, in the wake of the Supreme Court’s decision in Boumediene. It argues that the impractical and anomalous test adopted by the Court in Boumediene would counsel in favor of greater procedural protections to asylum seekers who have passed a credible fear interview. Specifically, the note calls for bond hearings for these asylum seekers after a presumptively reasonable period of time.

It is a quick and interesting read and I commend it to you.

EDNY Discusses Extraterritorial Application of the Fourth Amendment

At the end of last month, the Eastern District of NY decided U.S. v. Loera, denying two motions to suppress by Joaquin Loera, better known as El Chapo. Loera argued that the U.S. Government violated his Fourth Amendment rights when it searched servers containing his information in the Netherlands, as well as evidence contained in spyware accounts on U.S. servers owned by Amazon.

The Court decided that Loera lacked standing, because he refused to acknowledge the seized data was his (a Catch-22 the Court recognized), but went on to state that even if he possessed Fourth Amendment standing, it would have ruled against him regardless. This is where the Court’s discussion of the extraterritorial application of the Constitution appeared.

The Court relied on Verdugo-Urquidez, noting that much like Verdugo-Urquidez himself, Loera is accused of being a high ranking member of a Mexican drug cartel. While the searches at issue in Loera took place in the Netherlands, as opposed to Mexico, the Court held that the search was outside the United States of property owned by a Mexican citizen, which is exactly the situation the Supreme Court faced in Verdugo-Urquidez.

Loera argued that he had sufficient connections to the United States, as demonstrated by the Government’s affidavits, alleging his wide-ranging criminal conspiracy to import drugs to the United States. The Court rejected this argument for two reasons: 1) the Defendant bears the burden of demonstrating a substantial connection to the United States and may not rely on Government affidavits to meet that burden; and 2) this is not the sort of connection that the Supreme Court envisioned when it discussed the community of people covered by the Fourth Amendment. Rather, purely criminal acts do not entitle a defendant to the Fourth Amendment’s protections.

The Court also made other findings as to why, even if the Fourth Amendment applied, the evidence would not need to be suppressed.

This was a straightforward application of Verdugo-Urquidez and as such, is fairly uncontroversial. I also find the Court’s additional rationales for allowing the searches to be convincing and thus I agree the evidence should not be suppressed. However, as noted elsewhere, I have issues with Verdugo-Urquidez itself. But one aspect of this case bears special mention.

It is odd to argue that purely criminal activities do not establish the “substantial connections” required to render the Fourth Amendment applicable to someone like Loera, when the Fourth Amendment is largely concerned with protecting the rights of criminal defendants. Surely, criminals are a part of the American community, otherwise there would be no basis for finding even American citizens within the ambit of “the people” protected by the Fourth Amendment. Furthermore, courts have regularly found that the Fourth Amendment applies to undocumented immigrants who are found within the United States, and yet their very presence is often described as a criminal act.

Given that, it is hard to credit the Court’s rationale on this particular issue.

Cert petition filed in Ninth Circuit cross-border shooting case

As promised, when the defendant sought to stay the Ninth Circuit’s mandate, a petition for certiorari has been filed in Swartz v. Rodriguez, which concerns a cross border shooting incident. I discussed the Ninth Circuit’s decision here.

The petition is available here.

The petition presents two questions: 1) the “antecedent question” of whether a Bivens remedy applies at all and 2) whether Officer Swartz was entitled to qualified immunity.

As to the first question, it argues that the context of a cross-border shooting is new for Bivens purposes and that four “special factors” counsel hesitation in extending Bivens to this new context. Those special factors are: 1) foreign relations; 2) separation of powers; 3) the extraterritorial application of the Constitution in this case; and 4) the failure of Congress to act to provide a remedy.

I do not find the question of the extraterritorial application to be particularly convincing, because at the time Officer Swartz fired his weapon at J.A., the minor child, he had no idea if J.A. was a Mexican citizen, an American citizen, or whether he had any substantial ties to the United States. All he knew was that J.A. was in Mexico. The Supreme Court just last term in Hernandez v. Mesa frowned upon the use of unknown facts, learned only in hindsight, to justify a grant of qualified immunity. While this petition does ask a slightly different question, I do not believe that this makes a difference here.

Had J.A. been an American citizen, I believe he clearly should be entitled to a Bivens remedy, despite his presence in Mexico. The Supreme Court has consistently held, for over a century, that the Fourth Amendment travels with American citizens abroad. Given this, it does not seem extreme to extend the Bivens remedy abroad to the same extent. For reasons I have articulated elsewhere, I believe that the Fourth Amendment follows the conduct of U.S. officials wherever they act. And in this case, the action taken by Swartz undeniably occurred on U.S. soil, even though the effects occurred in Mexico.

In last term’s Ziglar v. Abbasi, the Court appeared to restrict Bivens to the three contexts in which it had previously been held to apply - unlawful searches and seizures under the Fourth Amendment, due process claims under the Fifth Amendment, and claims under the Eighth Amendment. Here, this seems like a classic Bivens case - indeed, unlike the search in Bivens, the seizure here was much more extreme. Only if the Court takes an extremely cramped view of the context can it be said to be materially different from Bivens itself.

While Congress could make matters a great deal clearer by enacting a statutory remedy for these types of cross-border shootings, its inaction, especially in light of Bivens, does not deprive the Court of the ability to recognize this three-decades old remedy in this familiar context.

Are we asking the right question?

When discussing whether the Constitution follows the flag, people tend to conceptualize the question as whether or not the Constitution applies overseas.  But is that the proper question?  While the Supreme Court may have initially conceptualized the question that way in In re Ross, where it held that the Constitution cannot have effect in another country, in every other case since Ross, the question has been formulated more in the frame of "Who has the right to enforce the Constitution overseas?"

The first time this formulation appeared was in the United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).  There, the Court wrote that "Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens."  299 U.S. at 318.  This formulation indicates that, if a U.S. citizen is involved, the Constitution would apply.

The Court echoed this formulation in Reid v. Covert, where the question was whether the Sixth Amendment applied to American citizens overseas, accompanying U.S. military forces.  Relying on the citizenship of the military spouses, the Court said yes.  And this formulation also played a role in United States v. Verdugo-Urquidez, which focused less on whether the Fourth Amendment applied in Mexico, and more on whether Verdugo-Urquidez had the right to claim the protections of the Fourth Amendment.  Indistinquishing Reid, the Court noted that it dealt with citizens, rather than aliens.  Furthermore, the implication of the Verdugo-Urquidez majority's holding is that, had Verdugo-Urquidez possessed substantial connections, the Fourth Amendment would have applied.

Thus, it appears that the better way to conceptualize the extraterritorial application of the Constitution is to start with a presumption that the Constitution does apply anywhere that the U.S. Government acts, but that there is a limited group of people who have standing to enforce its provisions, if those acts take place outside the United States.  I'll dive into this more in future posts.

 

Puerto Rico and the Appointments Clause

On July 13, 2018, the United States District Court for the District of Puerto Rico issued a decision in In re: The Financial Oversight and Management Board for Puerto Rico as representative of the Commonwealth of Puerto Rico, denying a motion to dimiss the Oversight Board's bankruptcy petition under the Puerto Rico Oversightm, Management, and Economic Stability Act (PROMESA).

Under the terms of the Act, the Financial Oversight and Management Board had filed a petition in federal court to restructure Puerto Rico's debt.  Three of the creditors, Aurelius Investment, LLC, Aurelius Opportunity Fund, LLC and Lex Claims, LLC moved to dismiss the petition, arguing that the Oversight and Management Board was appointed in a manner inconsistent with the Appointments Clause of Article II, Section 2 of the U.S. Constitution.  The following is an excerpt of the facts.  Footnotes and citations have been removed.

In 2016, in response to the longstanding and dire fiscal emergency of theCommonwealth, Congress enacted PROMESA “pursuant to article IV, section 3 of the Constitution of the United States, which provides Congress the power to dispose of and make allneedful rules and regulations for territories.” PROMESA established, among other things, federal statutory authority pursuant to which federalterritories, including the Commonwealth, may restructure their debts.

The Oversight Board is composed of seven voting members, with the Governor or his designee serving ex officio as an additional non-voting member.  PROMESA provides that the President "shall appoint" the seven voting members as follows: one "may be selected in the President's sole discretion" and six "should be selected" from specific lists of candidates by congressional leaders. (emphasis added).  PROMESA does not require Presidential nomination and Senate confirmation for the President's discretionary appointeess and members chosen from the congressional lists.  However, in the event that the President appoints members that are not named on the congressiaional lists, Senate confirmation is required under PROMESA.

 

Aurelius argued that the Appointments Clause procedures were mandatory because members of the Board are either (i) principal "Officers of the United States" who could only be appointed with Senate confirmation; or (ii) inferior officers of the United States whose appointment was improperly delegated to the President.

The United States intervened to defend PROMESA's constitutionality.  It argued that PROMESA’s appointment mechanism is not subject to the Appointments Clause because (i) the Oversight Board members are territorial officers rather than “Officers of the United States,” and (ii) the Appointments Clause does not govern the appointment of such territorial officers.

In addition, the Board argued that the Appointments Clause is not a "fundamental" constitutional provision and so does not apply of its own force to Puerto Rico, under the Territorial Incorporation Doctrine, and, in the alternative, even if were applicable, the Board members were properly appointed.

The Court avoided the tricky question of whether the Appointments Clause applies to Puerto Rico, because it determined that the members of the Board were territorial officers and not "Officers of the United States."  As such, regardless of whether the Clause applied, it would not govern the appointment of Board members.

The Court relied on Congress's plenary power under Article IV, Sec. 3 of the Constitution to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States...."  It held that despite the fact the officers are appointed by the President and are only removable by him, they are not "Officers of the United States" within the meaning of the Appointments Clause.  Because territories are not inherently sovereign, like states, the federal government plays two roles in overseeing them - the more familiar federal role, and it can act as states do with regard to their own governments.  The court likened territories to municipal corporations, such as counties.  When acting in that role, the federal government creates officers that belong to the territory and it has the authority to determine how such officers shall be appointed.

This can be a confusing area of law, since most people are not accustomed to thinking of federal power as being divided in this way.  It can also be confusing, given that the Supreme Court has held that the territory's sovereign powers flow from the federal government, such that the two are not distinguishable for Double Jeopardy purposes.  Nevertheless, this distinction between territorial and federal officers is long recognized and it allowed the Court to avoid the more tricky question that would arise under the Board's theory, arising as it does from the Insular Cases.

Further reading:

In re The Financial Oversight and Management Board for Puerto Rico as representative of Commonwealth of Puerto Rico, No. 17 BK 2383-LTS.

Hat tip to Bob Loeb at Orrick for posting a copy of the decision.

Judge Kavanaugh and the Extraterritorial Constitution

With the nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy, I have decided to examine Judge Kavanaugh's views on the extraterritorial application of the Constitution.  Because of his position on the D.C. Circuit, he has a higher than usual number of opinions in this area, largely as a result of that Circuit's role in overseeing appeals from detainees held at Guantanamo Bay, Cuba.

This is something of a mixed blessing - on the one hand, it provides a larger number of opinions to analyze; on the other, almost all of them involve questions of war, which tend to be treated differently than other areas of law.  Nonetheless, an examination of Judge Kavanaugh's six opinions dealing with the extraterritorial application of the Constitution is useful.

Special thanks to dccircuitbreaker.org for compiling all of Judge Kavanaugh's opinions in one place for easy reference.

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Third Circuit holds Suspension Clause applies to Special Immigrant Juveniles

Last week, the Court of Appeals for the Third Circuit decided Osorio-Martinez v. Attorney General, 17-2159, a challenge by several Honduran and El Salvadoran children and their mothers to an order of expedited removal.  The Court held that the children, who had been granted Special Immigrant Juvenile (SIJ) status, could not challenge their expedited removal orders, because 8 U.S.C. 1252(e)(2) deprives the courts of jurisdiction to determine anything other than whether an expedited removal order was issued and whether it applies to the petitioners.

This was a follow-on to the Third Circuit's earlier decision in Castro v. Department of Homeland Security, 835 F.3d 422 (3rd Cir. 2016) cert denied 137 S. Ct. 1581 (2017).  There, the Court had made a similar holding regarding these same plaintiffs, prior to their achieving SIJ status.  In Osorio-Martinez, the court confronted the question left open by Castro, whether the jurisdiction-stripping statute violated the Suspension Clause of Article I, Section 9.

In Castro, the court did not reach the question because it determined the juveniles lacked sufficient ties to the United States to invoke the Suspension Clause, relying on Verdugo-Urquidez.  Here, however, the court determined that SIJ status created a sufficient legal relationship between the United States and the juveniles in question to allow them to invoke the Suspension Clause.

The court then used the Supreme Court's test in Boumediene v. Bush, 553 U.S. 723 (2008), to determine that nothing in the juveniles' status prevented them from invoking the Suspension Clause and that the jurisdiction-stripping provision provided no adequate and effective alternative means of challenging their detention and removal.  Therefore, the jurisdiction-stripping provision was unconstitutional as applied to these plaintiffs.

In my opinion, the decision by the Third Circuit here is correct.  However, I take issue with its earlier decision in Castro.  Simply put, the "substantial connections" test of Verdugo-Urquidez has no place in an analysis of whether an alien can invoke the Suspension Clause.  The Suspension Clause has no reference to "the people," and its placement in Article I, Section 9 makes clear it is a limit on Congress' power, not a right granted to individuals.

Finally, the reliance on substantial connections in Castro conflicts with Boumediene itself, which did not examine the connections between the detainees in Guantanamo Bay, Cuba and the United States.  The only connections the detainees had was their presence in military custody, yet the majority still found they had the ability to invoke the Suspension Clause.

This is yet another example of lower courts reading Verdugo-Urquidez to apply far beyond both its facts and its reasoning.  Hopefully, advocates can start pointing out that the substantial connections test, by its very terms, is limited to only those Amendments that reference "the people" and courts will start agreeing.  Beyond that, in a future blog post, I plan to explain why it is time to revisit the reasoning of Verdugo-Urquidez, even if we ultimately decide to keep its holding.

Some brief thoughts on Trump v. Hawaii

Today, the U.S. Supreme Court decided Trump v. Hawaii, a challenge to the President's "travel ban."  The majority upheld the ban 5-4, ruling that banning individuals from certain countries was within his statutory power under the Immigration and Nationality Act.

For the most part, the decision does not touch on the extraterritorial application of the Constitution.  But I wanted to briefly address a statement by Justice Thomas in his concurring opinion.

The plaintiffs had challenged the travel ban on both statutory and constitutional grounds.  They argued that the ban violated the First Amendment's protection against the establishment of religion, because it was the policy implementation of the President's long-promised "Muslim Ban."

The majority found standing to address this question based on the First Amendment rights of the plaintiffs, U.S. citizens, to associate with their relatives.  (Slip op. at 25-26).

Justice Thomas, in his concurrence, notes that the Establishment Clause does not create a right to be free from all laws that a "reasonable observer" views as religious or antireligious.  He then states:  "The plaintiffs cannot raise any other First Amendment claim, since the alleged religious discrimination in this case was directed at aliens abroad. See United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990)."

However, he provides no further rationale or explanation for his view that the plaintiffs are not in a position to raise a First Amendment challenge on behalf of the aliens being rejected based on their religion.  There is simply no basis in Verdugo-Urquidez for holding that the Establishment Clause does not protect aliens seeking entry to the United States.

Justice Thomas's citation to Verdugo-Urquidez cites to the Court's discussion of the term "the people" and notes that it is used in the Fourth, First, Second, Ninth, and Tenth Amendments.  But this does not answer the question.  First of all, the term "the people," while appearing in the First Amendment, does not appear until discussing the right of the people to peaceably assemble and petition their government for a redress of grievances.  There is nothing in the text to limit the right to free exercise to be limited to the people.  Indeed, the plain language of the Amendment makes clear it is a limit on Congress:  "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...."  Nothing here implies any limit to "the people" of the United States.

Only one Court of Appeals has ever addressed the question of whether the Establishment Clause applies outside the United States - the Second Circuit in Lamont v. Woods, 948 F.2d 825 (2nd Cir. 1991).  Decided the year after Verdugo-UrquidezLamont involved a challenge to the State Department's use of public funds to build religious schools in foreign countries.  There, the Court relied on the Verdugo-Urquidez framework to strike down the expense of the money.  Unlike the Fourth Amendment, the court found that any violation of the Establishment Clause occured in the United States, when the money was granted by Appellants, not once it was spent.

Furthermore, an in support of the textual argument above, the court noted that "The Establishment Clause, unlike the Fourth Amendment, contains no limiting language. Indeed, the basic structure of the Establishment Clause, which imposes a restriction on Congress, differs markedly from that of the Fourth Amendment, which confers a right on the people."  948 F.2d at 835.  The Second Circuit then relied on the Supreme Court's holding in one of the first Insular CasesDownes v. Bidwell, which held that:

When the Constitution declares that "no bill of attainder or ex post facto law shall be passed," and that "no title of nobility shall be granted by the United States," it goes to the competency of Congress to pass a bill of that description. Perhaps, the same remark may apply to the First Amendment, that "Congress shall make no law respecting an establishment of religion. . . ." We do not wish, however, to be understood as expressing an opinion how far the bill of rights contained in the first eight amendments is of general and how far of local application.  182 U.S. 244, 277 (1901).  Thus, the Court itself had previously held that the Establishment Clause goes to the very root of Congress to act at all.

The court also looked to the history of the Establishment Clause and found it telling that both the drafting committee and the full House refused Madison's suggestion that the Clause address establishment of a "national" religion.

Finally, the court addressed whether there would be negative policy implications of applying the clause abroad.  There is likely a better argument from a policy perspective in finding application of the clause to be problematic in this case.  However, this alone is not enough to overcome the presumption that the Establishment Clause limits Congress's (and the Executive's) power to discriminate based on religion.  At the very least, if one wants to argue that the policy implications mitigate against the extraterritorial application of the Constitution, one need do more than make a passing citation to Verdugo-Urquidez as if the case definitively answered the question.