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August 27, 2020
Gerald L. Neuman, Human Rights Program Co-Director and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, contributed a piece to the Just Security blog this week to discuss the recent Supreme Court decision in DHS v. Thuraissigiam. Neuman previously filed an amicus brief to the Supreme Court on the case, which involves a Tamil individual who tried to claim asylum in the United States after fleeing Sri Lanka in fear of persecution.
“At a time when the rule of law is under threat and xenophobic incitement has become a central government policy, a five-Justice majority of the Supreme Court has called into question the Constitution’s fundamental guarantee against executive detention. Refugees are the primary target of the Court’s decision in Department of Homeland Security v. Thuraissigiam, but the immediate implications of Justice Samuel Alito’s opinion are much wider, and the opinion endangers everyone – U.S. citizens included – by reopening settled questions about the Habeas Corpus Suspension Clause of the Constitution.
This important case has gotten less public attention than it deserves. The opinions may be hard for non-experts to follow, because they arise in a technically complex area of immigration law, and because Alito mischaracterizes some of the issues. The case arose when Vijayakumar Thuraissigiam fled Sri Lanka in the hope of being protected by the United States and was arrested by immigration officials in 2017 at a short distance from the southern border. He was placed in rudimentary “expedited removal” proceedings, where his claims for protection were quickly rejected. The statutory provisions on expedited removal clearly preclude anyone in his position from obtaining judicial review, including by habeas corpus, of the legality of the removal decision. The central issue raised by the case was whether this total preclusion of habeas corpus for a refugee within the United States violated the Suspension Clause.
Once the Supreme Court granted certiorari, it was likely that five Justices would rule against the refugee’s right to have his particular claims reviewed; the more urgent question was how broadly they would uphold preclusion of judicial review.”
July 6, 2020
Gerald L. Neuman, Co-Director of the Human Rights Program, joined immigration and refugee scholars during June in an amicus brief challenging the Trump Administration’s restriction of asylum procedures during the COVID-19 crisis. The brief supports plaintiffs’ emergency motion for a temporary restraining order to halt the removal of a child fleeing targeted violence in his home country of Honduras.
The Trump administration’s order relies on a broad interpretation of the Public Health Service Act, which allows the CDC to limit the “introduction” of individuals and goods to the U.S. In reality, the CDC order is a thinly-veiled attempt to further curb immigration, only applying to noncitizens (including unaccompanied children) who arrive at the southern and northern borders without documentation. Health experts have decried the order, citing the numerous exemptions as demonstrating that its purpose is to target a disfavored category rather than to protect public health.
“The administration is abusing the CDC to create a shadow deportation system that circumvents all legal limitations on deportation,” said Neuman.Continue Reading…
May 24, 2020
Posted by Dana Walters
“I have always felt very strongly that I need to work against inequality and the forces that make it possible,” says Niku Jafarnia J.D./M.P.P. ’20. For her, draconian and difficult immigration systems that favor certain populations are key sources of the disparities she hopes to eliminate.
When President Donald Trump instituted the first of many travel bans that targeted Muslim-majority countries in 2017, Jafarnia was a first-year law student and she was furious. She had not yet entered the legal clinics that would become like a home to her at Harvard Law School. Still, she emailed Sabrineh Ardalan ’02 and Phil Torrey of the Harvard Immigration and Refugee Clinic, asking how she could fight back.
“Had I not been in law school when this happened, I would have felt at a loss with what to do,” she says.
At the airport, she stood with Ardalan and Torrey holding a sign offering legal assistance and translation services in Persian. No one took her up on the offer, but the moment stands out to her from the last four years of graduate school. From the energetic and welcoming response of HLS’s clinical faculty to finding a way to act, she had found a community and a path towards countering what she sees as oppression.
Jafarnia believes that she has been lucky. A constellation of factors, such as being born in the U.S., has provided her with a great amount of opportunity, she said. She is constantly tuned in to how she can use her privilege to dismantle the inequitable structures that cause harm to others. When her parents emigrated from Iran in 1977 to pursue graduate education, they did not necessarily expect to stay, she said, but the combination of the Iranian Revolution and the Iran-Iraq War kept them in the U.S. Throughout law school, she has focused on issues related to migration, driven by a deep connection to people whose stories feel so familiar.Continue Reading…
April 20, 2020
As 3 deportees to Haiti and 75 Deportees to Guatemala Test Positive for Coronavirus, 164 Organizations from the U.S. and Haiti Declare Deportations to be Trump’s Cruel, and Usual, Punishment of Haitians
San Diego, California, April 20, 2020 – Today 164 human rights organizations, immigrants’ rights organizations, faith-based groups and academic institutions across the United States and Haiti submitted a letter to the Trump Administration, Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) denouncing the deportation of 61 Haitians on April 7, 2020, and urging them to halt deportations to Haiti. The letter comes on the eve of rumors of a deportation flight bound for Haiti scheduled for as early as April 21, 2020.
Signatories of the letter were “deeply concerned that all detainees in ICE detention centers have a high risk of exposure to coronavirus.” Deportees are not tested for coronavirus in the U.S. before being deported, and sources indicate that some of the Haitians deported on April 7 were quarantined in Haiti, but none of them were tested.
These concerns were amplified with the report last week that three deportees to Haiti and 75 deportees to Guatemala tested positive for coronavirus. With 215 confirmed cases in Guatemala, the U.S. flights alone make up 35 percent of the confirmed cases in the entire country. The U.S. Center for Disease Control (CDC) has sent a team to Guatemala to investigate further. Pending outcome of the CDC’s investigation in Guatemala, all deportation flights should be suspended.Continue Reading…
October 9, 2019
Professor Gerald Neuman, Co-Director of the Human Rights Program and
J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, recently filed an amicus curiae brief to the US Supreme Court in a pair of cases involving the standards for judicial review of deportation decisions.
Both cases, Guerrero-Lasprilla v. Barr and Ovalles v. Barr, involve long-term immigrants who were wrongly removed – to Colombia and to the Dominican Republic – based on interpretations of the statutory deportation grounds that the Supreme Court later overturned. The petitioners applied to reopen the deportation decisions so that they could return to the United States, arguing that the time limit for reopening should be “equitably tolled” because they had diligently sought relief. The immigration agency rejected their claims as untimely, and the Fifth Circuit Court of Appeals held that their diligence presented an unreviewable issue of fact rather than a reviewable issue of law. The Supreme Court granted certiorari, and the cases will be argued in December, and a decision is expected in the spring.
The amicus brief of three leading Scholars of Habeas Corpus Law explains that reviewable issues of law include “mixed questions” of the application of a legal standard to facts, both as a matter of statutory interpretation and in order to satisfy the Suspension Clause of the Constitution. It shows how historically, both in the eighteenth century and in the modern era, the right to habeas corpus has included judicial review of the application of law to fact.
November 1, 2018
Press Statement: Constitutional Law Scholars Respond to Trump’s Threats Against Birthright Citizenship
On Tuesday, Oct. 30, leading constitutional scholars stated that there is no serious scholarly debate about whether a president can, through executive action, eliminate birthright citizenship and contradict the Supreme Court’s long-standing and consistent interpretation of the Citizenship Clause of the 14th Amendment. Gerald L. Neuman, HRP Co-Director and J. Sinclair Professor of International, Foreign, and Comparative Law, was one of fifteen authors on this statement.
The full statement reads as follows:
President Donald Trump is reportedly considering an executive order to essentially rewrite the Citizenship Clause of the 14th Amendment to eliminate birthright citizenship. In an interview to be aired later this week, he explains that people are now telling him that he can do this “just with an executive order.” As constitutional scholars who have studied the 14th Amendment, we write to say in no uncertain terms that he is wrong.
The Citizenship Clause—enshrined as Section 1 of the 14th Amendment to the U.S. Constitution in 1868—states simply that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” The 14th Amendment, adopted in the immediate aftermath of a Civil War that very nearly ripped this country in two, established the foundational principle that all persons are entitled to due process and equal protection under the law. The Citizenship Clause contained therein was meant as a direct rebuke to the infamous decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), in which the Supreme Court held that that people of African descent born on our soil whose ancestors were slaves could not be citizens, even if they were free.
The Supreme Court 120 years ago in United States v. Wong Kim Ark, 169 U.S. 649 (1898), settled the very issue raised by the president. In that case, the Court held that with certain very limited exceptions, all children born in the United States are natural-born citizens regardless of the citizenship status of their parents. Many decades later in the case of Plyler v. Doe, 457 U.S. 202 (1982), in which the Court upheld the right of all children regardless of alienage to a free public education, the Court analogized its holding on Equal Protection Clause grounds to the settled law on the Citizenship Clause as declared in Wong Kim Ark. Specifically, the Court noted that just as undocumented immigrants are “subject to the jurisdiction of the United States” for purposes of the Citizenship Clause, they too are “within the jurisdiction” of a state for purposes of the Equal Protection Clause. Id. at 211 n.10.
There is today no serious scholarly debate about whether a president can, through executive action, contradict the Supreme Court’s long-standing and consistent interpretation of the Citizenship Clause of the 14th Amendment. Instead, as conservative legal scholar James Ho, now a federal judge on the U.S. Court of Appeals for the 5th Circuit nominated by President Trump, wrote more than a decade ago, “a constitutional amendment is … the only way to restrict birthright citizenship.” The executive branch’s own lawyers have long agreed.
It took a Civil War—the bloodiest conflict in American history—to resolve a dispute about what it means to be an American—a person—in this country. The 14th Amendment, including the Citizenship Clause, is the rightly cherished result of that American tragedy.
Signatories included: Muneer I. Ahmad, Yale Law School; Walter E. Dellinger III, Duke University School of Law; Lucas Guttentag, Stanford Law School and Yale Law School; Harold Hongju Koh, Yale Law School; Stephen H. Legomsky, Washington University School of Law; Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law; David A. Martin, University of Virginia School of Law; Michael W. McConnell, Stanford Law School; Hiroshi Motomura, University of California, Los Angeles (UCLA) School of Law; Gerald L. Neuman, Harvard Law School; Cristina Rodríguez, Yale Law School; Peter J. Spiro, Temple University Law School; Geoffrey R. Stone, The University of Chicago; Laurence H. Tribe, Harvard Law School; and Stephen I. Vladeck, The University of Texas at Austin Law School.
Find the full press release on the Center for American Progress’s website.
February 19, 2018
Gerald Neuman intervenes as amicus in Sixth Circuit appeal to prevent deportation of Iraqi immigrants from the U.S.
Posted by Emily Nagisa Keehn
Professor Gerald Neuman, Co-Director of the Human Rights Program, recently filed an amicus curiae brief to the Sixth Circuit Court of Appeals in a case concerning the potential deportation of Iraqi immigrants, most of whom are Chaldean Christians, a persecuted minority in Iraq.
The Iraqi immigrants were ordered deported years ago, but could not be removed because there was no agreement between the U.S. and Iraq by which Iraq would accept their repatriation. The current administration negotiated an agreement with Iraq this past summer for that purpose, and began arresting the Iraqis with a view to sending them back immediately, without giving them an opportunity to show danger of persecution or torture in light of changed country conditions. If the Iraqis could show such danger, that would bar return under both U.S. law and domestic law.
In July 2017, the U.S. District Court for the Eastern District of Michigan ordered a stay of removal to give the petitioners the opportunity to seek administrative re-opening of their cases due to their need for protection. The government then appealed.
The amicus brief of law professors to the Sixth Circuit explains why the Suspension Clause of the Constitution requires that people in this situation have an effective judicial remedy that could prevent the government from sending them outside the U.S. before their cases can be heard. Thirteen other U.S. professors joined Professor Neuman as co-amici.
January 29, 2018
Tuesday, January 30, 2018
“Turkey and the Syrian Refugee Crisis: Responses and Perspectives”
A talk by Zulfukar Aytac Kisman, of Firat University
12:00- 1:00 p.m.
Since 2011, Turkey has received more than three million Syrian refugees, the largest community of Syrians displaced by the conflict. This has had significant economic, political, security, social, and foreign policy challenges for Turkey. This talk by Dr. Zulfukar Aytac Kisman, of Firat University, will focus on the Syrian refugee crisis from Turkey’s perspective and analyze the Turkish response to the crisis, policies developed, and the need for more rigorous planning. Kisman, who is currently a visiting scholar at Harvard University’s Institute for Quantitative Social Science, will focus on Turkey’s internal dynamics and potential conflict points that will likely continue to shape Turkey’s refugee policy and discuss options going forward.
This event is presented by Islamic Legal Studies Program: Law and Social Change, and co-sponsored by the Harvard Law School Immigration and Refugee Clinic Program.
June 16, 2017
Neither Facially Legitimate Nor Bona Fide–Why the Very Text of the Travel Ban Shows It’s Unconstitutional
Posted by Gerald Neuman
This article was first published on Just Security.
As the litigation over the travel ban moves to the Supreme Court, the most important passage in the Fourth Circuit’s en banc opinion may be a tangential footnote finding “yet another marker” of illegitimate purpose in the text of the Executive Order. Both the first version of the Executive Order (of January 27) and the second version (of March 6) include language that any informed observer would recognize as evidence that the purpose of the travel ban is to gratify and further incite hostility against Muslims.
Advocates seeking to persuade doubting Justices should not be distracted by the voluminous debates about whether candidate Trump’s statements count against the constitutionality of President Trump’s actions. For Justices inclined to interpret narrowly the standard of review in immigration cases, the explicit statement of purpose in the first EO, and the residual markers in section 11 of the revised EO, should provide the starting point.
In the first EO, the final paragraph of section 1 explained the EO’s purpose as follows:
In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.
As the Fourth Circuit noted, “Numerous amici explain that invoking the specter of ‘honor killings’ is a well-known tactic for stigmatizing and demeaning Islam and painting this religion, and its men, as violent and barbaric.” The thinly coded incitement throughout this purpose paragraph is perhaps best explained in Aziz Huq’s amicus brief for Muslim Rights, Professional and Public Health Organizations.
Consistent with that goal, section 10(iii) of the first EO directed the Secretary of Homeland Security to collect and publish “information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals…” The mandate to publish enlists the department in nothing short of an ongoing campaign of anti-Muslim agitation.
The March 6 EO, which President Trump has now dismissed in a tweet as a “politically correct” version of his real policy, deletes the explanation of purpose, but retains the collection and dissemination of data on “types of acts of gender-based violence against women, including so-called ‘honor killings,’” in section 11(iii). That directive has no conceivable relation to the alleged national security purpose of the travel ban, and it continues to reveal the true underlying purpose of both orders.
This facial evidence of illegitimate purpose has particular salience because the dispute involves immigration policy, and the Justices are likely to view it through the lens of specialized precedents that have operated in relation to substantive immigration restrictions. In the 1970s, when the Supreme Court abandoned an earlier doctrine that had made constitutional challenges to criteria for grant or denial of admission nonjusticiable, it articulated instead a diluted test of constitutionality. Kleindienst v Mandel (1972) and Fiallo v Bell (1977) required the government to show that the restriction was based on a “facially legitimate and bona fide reason.” The time may have come to move beyond this standard, but the Justices might not – and need not — make the case of Trump’s EO the occasion to do so.
The opinion of Justices Kennedy and Alito, concurring in the judgment in Kerry v Din (2015), sheds light on the meaning of the standard, explaining that the government’s reason must be legitimate on its face and the government must be acting in good faith. If the challenger makes an affirmative showing of bad faith, the court may look to additional factual details that determine the constitutionality of the government action.
While both elements are required to uphold a government restriction, it may be safer for advocates to point to indications of unlawful purpose on the face of the orders before turning to extrinsic evidence of bad faith. The January 27 version of the order is so obviously the context of the March 6 version that both should be examined together, yet even viewing the March 6 EO in isolation, the incongruous attention to honor killings cries out for further inquiry.
The Fourth Circuit rightly asserted that “we cannot shut our eyes” when evidence “stares us in the face.” The religious animus that underlies the Executive Orders is already visible in the text, and the less formal statements merely provide confirmation. That point deserves more emphasis.
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