Truthdig
Trump's War on Immigrants Has Already Reached the Supreme Court
http://www.truthdig.com/report/item/trumps_war_on_immigrants_has_already_rea
ched_the_supreme_court_20170227/
AddThis Sharing Buttons
Share to FacebookShare to TwitterShare to More3
Posted on Feb 27, 2017
By Bill Blum
A protest at the Supreme Court over President Trump's executive orders.
(Alex Brandon / AP)
If you've been waiting for President Donald John Trump's war on immigrants
to reach the Supreme Court, your wait is over. The battle has already begun.
No, the conflict hasn't come to the top court by way of Trump's high-profile
"Muslim ban," which has been enjoined by a series of lower court decisions,
including one handed down
(https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf ;)
on Feb. 9 by the 9th U.S. Circuit Court of Appeals. The administration has
backed away from its threat to seek immediate Supreme Court review of those
unfavorable rulings in favor of revising the ban on narrower terms.
But even before the original travel ban was announced on Jan. 27, the
Supreme Court had loaded up its current docket with cases that will have
profound consequences for Trump's war, especially his plans to secure and
militarize the border and fulfill his campaign promises of mass
deportations.
Two appeals before the Supreme Court stand out in particular. Although both
originated well prior to November's election, the federal government is
represented in them now by Jeff Sessions' Justice Department.
The first (http://www.scotusblog.com/case-files/cases/hernandez-v-mesa/) is
Hernandez v. Mesa, which was argued last week.
The facts of the case are gut-wrenching: As dusk fell on the evening of June
7, 2010, a group of Mexican teenagers was playing a game in the sprawling
concrete culvert that winds between the cities of Juarez, Mexico, and El
Paso, Texas. The actual boundary between the two countries is unmarked but
is plotted along the middle of the culvert. Security fences sit atop the
culvert on both sides of the divide.
The game, according to subsequently filed court documents
(http://www.scotusblog.com/2017/02/argument-preview-justices-take-issues-ari
sing-cross-border-shooting/) , involved the teens daring one another to run
up the culvert's northern incline to the American side, touch the U.S. fence
and scamper back down to Mexican territory.
For one of the participants-15-year-old Sergio Hernandez-the game proved
deadly. He and his buddies were confronted by U.S. Border Patrol Agent Jesus
Mesa, Jr., who was on the lookout for alien smugglers attempting to bring
people into the States.
With his handgun drawn, Mesa apprehended one youth by the shirt collar on
the American side of the border, then turned in the direction of the others
who had run away. He fired his weapon, striking Hernandez in the head from a
distance of approximately 60 feet. Hernandez died instantly beside a
concrete pillar on the Mexican flank of the culvert.
In the aftermath of the shooting, Mesa claimed that he had been surrounded
by Hernandez and the other teens, and that they were throwing rocks at him.
Those claims were later disproved by a cellphone video
(http://www.cnn.com/2010/US/06/10/texas.border.patrol.shooting/) taken by
an onlooker. The video, which was aired by both American and Mexican TV
outlets, showed no rocks being hurled or any other imminent threats to
Mesa's safety.
Mexican authorities charged Mesa with murder, but the U.S. refused to
extradite him. In 2012, the FBI cleared him
(https://www.justice.gov/opa/pr/federal-officials-close-investigation-death-
sergio-hernandez-guereca) of criminal wrongdoing. The Justice Department
also exonerated him in another investigation of the shooting, finding that
Hernandez, despite his age, was a known smuggler who had been arrested twice
before in the U.S. on smuggling charges but was allowed to return
voluntarily to Mexico without prosecution because he was a juvenile.
Seeking a judicial remedy, Hernandez's parents filed a wrongful death action
in federal district court in Texas against the Department of Homeland
Security, the Border Patrol and other agencies, as well as Mesa. They
alleged that their son's Fourth Amendment rights to be free from unjustified
lethal force had been violated, along with his rights to due process under
the Fifth Amendment.
A federal district court judge dismissed the suit, holding that Hernandez
enjoyed no constitutional protections because he was in Mexico when he was
hit, even though Mesa was standing on American soil. Although a three-judge
panel of the 5th Circuit Court of Appeals reversed that ruling, an en banc
panel of 15 circuit court judges reinstated the dismissal
(http://www.scotusblog.com/wp-content/uploads/2015/10/Hernandez-op-below.pdf
) in April 2015, setting the stage for a showdown in the Supreme Court.
The Hernandez case is important not only in its own right, but because
border-area shootings involving U.S.agents have proliferated at an alarming
rate. According to an amicus ("friend of the court") brief
(http://www.scotusblog.com/wp-content/uploads/2015/10/Hernandez-v-Mesa-gover
nment-of-Mexico-amicus.pdf) filed with the Supreme Court by the Mexican
government, U.S. Customs and Border Patrol officers have killed 51 people
since 2005. Several of the fatalities were caused by shots fired across the
border.
Still, Hernandez's parents face an uphill road in the Supreme Court. Even
the court's four liberals seemed hard-pressed during the oral argument
(https://www.supremecourt.gov/oral_arguments/argument_transcripts/2016/15-11
8_3e04.pdf ) to articulate a rule of law or identify a Supreme Court
precedent that could allow the case to proceed to a trial on the merits.
At one point in the proceedings, Justice Stephen Breyer suggested that the
court's 2008 decision
(https://www.law.cornell.edu/supct/html/06-1195.ZS.html) in Boumediene v.
Bush might provide a way forward. In that case, the court held, by a hotly
contested vote of 5-4 in a majority opinion written by Justice Anthony
Kennedy, that prisoners incarcerated in Guantanamo Bay, Cuba, could
challenge their detentions on Fourth Amendment grounds in U.S. courts, even
though they weren't American citizens and were confined outside the country.
Chief Justice John Roberts, however, sharply disagreed with Breyer over
Boumediene's relevance. If Mexican nationals were accorded constitutional
protections against the kind of deadly force used by agent Mesa, Roberts
asked, why wouldn't Iraqi victims of air attacks by drones guided from
Nevada have similar protections and be able to file lawsuits in American
courts? The clear implication was that such a liberal interpretation would
jeopardize U.S. sovereignty.
By any measure, the stakes in the Hernandez case are high. A victory for the
parents could give refugees and others denied visas to enter the U.S. new
avenues to contest future Trump travel bans. A loss would likely do the
opposite. It would also embolden the Border Patrol to continue its
Gestapo-like tactics with impunity. Should the court divide 4-4 along party
lines, the Fifth Circuit's adverse decision would remain in force.
The other immigration case with big implications for Trump's crackdown is
Jennings v. Rodriguez, a class action dealing with
(http://www.scotusblog.com/case-files/cases/jennings-v-rodriguez/) the
rights of immigrants detained pending deportation hearings to receive bail
hearings.
On any given day, on average, Immigration and Customs Enforcement (ICE)
detains 34,000 people, many in privately owned and operated prison
facilities that are poised to prosper
(http://www.motherjones.com/politics/2017/02/trumps-immigration-detention-ce
nter-expansion) and expand during Trump's tenure. Under the president's
recently promulgated executive orders on immigration and the Department of
Homeland Security (DHS) memorandums implementing the orders
(https://www.dhs.gov/news/2017/02/21/secretary-kelly-issues-implementation-m
emoranda-border-security-and-interior ) , the daily count of ICE detainees
is projected to mushroom to 80,000 as the administration moves to end the
agency's "catch and release" programs, which allowed unauthorized immigrants
to be paroled into the community on bond or their own recognizance, pending
deportation hearings.
The named plaintiff in the case, Alejandro Rodriguez, represents a class of
some 1,000 people who have been subjected to ICE detentions of six months or
more. Rodriguez was brought into the country
(http://www.scotusblog.com/wp-content/uploads/2016/05/15-1204-Opp-to-Govt-Pe
tition-for-Writ-of-Cert.pdf ) as an infant from Mexico. He gained lawful
permanent resident status when he was nine years old, and as an adult he
became a dental assistant.
But he also ran into to trouble with the law, sustaining criminal
convictions for joyriding at age 19 and misdemeanor drug possession at 24.
In 2004, he was taken into ICE custody, placed in mandatory detention
because of his criminal history and denied bail.
Rodriguez lost his deportation hearing, but with the ACLU representing him,
he filed an appeal with the 9th Circuit. While the appeal was pending, in
2007, ICE finally released him from detention, and an immigration judge
eventually canceled his removal from the country. In all, he spent more than
three years in ICE detention.
In 2015, the 9th Circuit handed Rodriguez and his fellow plaintiffs a
resounding victory, declaring that aliens detained by ICE for six months or
more have a statutory right to a bail hearing under various provisions of
federal immigration law. The Supreme Court subsequently granted the Obama
administration's petition for review. Since Trump's election, the case has
taken on added significance.
After hearing oral arguments in November, on Dec. 15 the court asked the
parties to submit supplemental briefs, addressing the issue of whether
long-term ICE detainees have a constitutional-not just a statutory-right to
receive bail hearings. The briefs are now on file, and a decision is
expected by the close of the court's present term at the end of June.
While it is difficult to predict how the court ultimately will rule, even a
tie vote this time would favor immigrants' rights, allowing the 9th Circuit
decision to stand and dealing a dramatic blow to Trump's anti-immigrant
agenda.
Whatever the outcome in Rodriguez's case, however, Trump's war on immigrants
has landed in the marble halls of the nation's most powerful judicial body
and is only just beginning. As the great French commentator Alexis de
Tocqueville wrote in his seminal text "Democracy in America" in 1835, "There
is hardly a political question in the United States which does not sooner or
later turn into a judicial one."
We'll see in due course whether the Supreme Court is prepared to enforce the
principles of judicial review and stand up to Trump-or turn the third branch
of government into a legal rubber stamp.
Lobbyists and Koch Brother Affiliates Will Run Trump's Senior Economic
Council
Bernie Sanders Responds to Trump's First Congressional Address
Nancy Pelosi Ducks Question on Impeachment (Video)
In Afghanistan, America's Biggest Foe Is Self-Deception
Truthdig: Drilling Beneath the Headlines
C 2017 Truthdig, LLC. All rights reserved.
Signup for Truthdig's newsletter
