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Thursday, February 09, 2017

Procedural Due Process in the Ninth Circuit's Immigration Order Decision

The Ninth Circuit's decision upholding judge Robart's TRO on President Trump's Immigration Executive Order focused on the procedural due process rights of lawful permanent residents, citing Landon v. Plasencia and noting that "[t]he Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens." The Court brushed aside the ad hoc efforts of White House Counsel to exclude LPRs from the scope of the EO, noting that "[t]he Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order" and that, "in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings."

More interestingly, the Court went beyond LPRs to recognize the potential procedural due process rights of other aliens, including nonimmigrant visa holders:

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; 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).

As I noted in an earlier blog post, I believe that procedural due process forms the best hope of overturning this EO. Beyond the fate of this particular EO, however, the courts' recognition that holders of nonimmigrant visas have protected liberty interests in those visas would be an enormous triumph for bringing constitutional doctrine in line with practical reality and justice. If Trump's EO succeeds in extracting such recognition from the judiciary, it would be a lovely irony.

Posted by Rick Hills on February 9, 2017 at 07:12 PM | Permalink


As I noted in the comments section to your last post, Rick, I think substantive due process -- or its statutory equivalent -- is the much stronger argument. It's also implicit in the CTA9 decision, both in note 7 and in the notion that using the seven nations as a proxy for dangerousness is dubious.

Posted by: Marty Lederman | Feb 9, 2017 8:33:34 PM

"If Trump's EO succeeds in extracting such recognition from the judiciary, it would be a lovely irony."

In one of his books, Alan Dershowitz noted rights comes from wrongs.

Posted by: Joe | Feb 9, 2017 9:14:10 PM

Marty, I appreciate your thoughtful comments to that post and would have responded but for an unusually hellish teaching schedule (16 credits for the month of February, with four courses that each meet 200 minutes per week). I was able to post this item today only because we received a snow day here at NYU.

As I have an 8 AM class tomorrow morning for which I have to prepare, here are some quick thoughts as to why a judge might be more attracted to a procedural due process theory.

1. PDP requires proof of a "liberty" or "property" interest. Such an interest allows judges to differentiate between aliens who have received a visa or by statutory standards defining some sort of expectation to enter the USA and those lacking any prior contact with, or similar expectation of entry into, the United States. Judges might want to draw such a distinction for "acoustic" rather than doctrinal reasons: It just sounds more unjust to deprive someone of ties to their actual home, job, family, and school than to exclude someone from a nation that they have never visited. Indeed, the instinct to limit due process theories with the requirement of some sort of legally protected expectation is so powerful that courts sometimes limit SDP with the requirement of a PDP-style "property" interest. (See RRI Realty Corp. v. Incorporated Village of
Southampton, 870 F.2d 911, 914–18 (2d Cir. 1989)).

2. PDP provides a weaker remedy -- usually a pre-termination hearing of some sort -- and therefore seems less intrusive into the executive branch's policy-making discretion than a "substantive" injunction on executive policy choices. The distinction may be illusory: Trump can simply re-do his EO with a narrower scope and more substantial factual basis in order to avoid the "rational basis" attacks on the current version. Nevertheless, the idea that the remedy will simply be an opportunity to be heard can embolden a judge to recognize a broader right.

3. SDP has a bad whiff about it: You know, an "oxymoron," a legacy of Lochner, and all that.

As you can tell, my reservations about SDP (or Equal Protection) are more strategic than substantive. To be candid, I am admittedly an immigration libertarian, and I want the plaintiffs to win this thing. Being a cautious sort of guy, I prefer a theory that does not frighten away a cautious sort of judge.

Of course, a baloney hearing of the sort that occurs with expedited review by a CBP officer seems like a pyrrhic victory, but it is better than a non-pyrrhic defeat. Moreover, I believe that the recognition that non-immmigrant visa holders can have liberty interests akin to those of green car holders would be a big symbolic advance on which more reliable protections could be built. In other words, baby steps.

But if SDP, or equal protection wins the day, then so be it.

Posted by: Rick Hills | Feb 9, 2017 9:33:29 PM

Marty: if you think the current administration violated SDP by using the seven nations as a proxy for dangerousness in the context of exclusion from entry, then presumably you must think the past administration also violated SDP by using the same proxy in the context of exclusion from visa waiver? Is there some SCt authority that supports the proposition that use of the same exact proxy can violate SDP for entry, but not for visa waiver? Ditto for rational-basis challenges, as I inquired in response to your comment to Rick's earlier post. Is there a SCt case holding that whether the same exact proxy is irrational turns, not just on the degree of fit, but on the degree of burden imposed? I'm not aware of any such precedent, and this multi-factor approach would seem to raise a serious incommensurability problem: "weighing" whether the degree of fit is "justified" given the degree of burden seems as indeterminate as asking whether a line is longer than a rock is heavy (to borrow one of Scalia's best lines).

Posted by: Hash | Feb 9, 2017 9:36:41 PM

PS. Marty, I do agree with you, though, that DP claim doesn't work here without SDP. If the seven-nations criteria is permissible under SDP, then I don't really understand the PDP argument that CA9 seemed to adopt: what exactly is the point of notice and a hearing if the only issue to be determined is whether a particular traveler is from one of the seven nations, given that their nationality has to be listed on their travel documents?

Posted by: Hash | Feb 9, 2017 9:46:42 PM

What's "8 U.S.C. 1231 note 8"? When I look at 8 U.S.C. 1231 ( https://www.gpo.gov/fdsys/pkg/USCODE-2011-title8/pdf/USCODE-2011-title8-chap12-subchapII-partIV-sec1231.pdf ) and count off the codification notes, the eighth note is an effective date provision that goes back to 1996. Not sure how that's relevant. Perhaps they're referring to the tenth note about involuntary return of persons subject to torture? I can't make the reference out.

I think that what Professor Lederman says about the need for SDP is exactly right, though on the merits of a SDP theory, I think Hash is exactly right. Does this sound anything like rational-basis review to you, him, or anyone? Of course, footnote 7 really addresses irreparable injury, but suppose it were worked up into a rational-basis argument on the merits as Professor Lederman suggests:

"Although the Government points to the fact that Congress and the
Executive identified the seven countries named in the Executive Order
as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated."

So, the populations of these countries pose sufficient "national security concerns" to trigger visa requirements as to those populations, but it's wholly irrational - this would be the argument - to say they pose sufficient national security concerns to justify temporarily barring aliens from those countries from entry. I don't think I doubt that under some heightened standard of review, if you ever get there, extrapolating from the visa requirements to the EO would fail, but as far as rational-basis review one might as well say it's irrational to ban a food coloring for human consumption because it causes sickness in a tiny fraction of very small mice. Or that the rule in Michigan v. EPA, imposing $9.6 billion in costs of mercury reduction over $4 to 6 million in health benefits, not only failed arbitrary and capricious review but was a wholly irrational substantive due process violation. That's just the way a lot of regulation works - extrapolating from small risks to big restrictions. Now, I get that refugees aren't food dye or mercury-emitting plants, but either we're really doing rational-basis review here or we're not. To say this fails rational-basis does feel either (a) political or (b) like a stealth argument for rational-basis-plus when certain types of non-fundamental liberty interests are on the line.

As evidence of the former, I don't quite get why it seems to be a given for the Ninth Circuit and most everyone else that Congress and the prior administration and DHS rationally designated these countries as countries of concern, but the current administration has to "offer evidence" for why it thinks the same countries are countries of super-concern. It's as if there's a presumption of regularity that attaches to what the prior administration does and a presumption of irregularity that attaches to what the current administration does. Why aren't the plaintiffs or courts challenging the prior administration's designation? By most lights, as Hash says, that would be pretty essential to challenging the present administration's designation. But as they're not, isn't it sufficient evidence that the seven countries are concededly countries of concern? The difference between concern and three-alarm-fire concern can just be made up with hyper-risk-aversion, and the degree to which the political branches are risk-averse about terrorism seems to me a matter for their complete discretion, absent some heightened standard of review for discrimination, and even then I'm not quite sure that the courts should really ever get to say the political branches are too risk-averse to, as Trump would put it, death and destruction. Maybe they should get to say so, but I would appreciate it if people who support this litigation would acknowledge that what it's all about at its essence is asking courts to check the political branches' "irrational" (in the sense that avoiding air travel is irrational) risk-aversion to minuscule risks of terrorism, where that risk-aversion impinges on the liberty interests of non-LPR non-citizens, or is inspired in any way by judgments about the terroristic propensities of certain religious or ethnic groups.

Posted by: Asher Steinberg | Feb 9, 2017 10:17:11 PM

Professor - I worked as a Foreign Service Officer. We revoked B1/2 visas on the spot all the time - DHS does as well. are you aware of this fact?

and how would the proposed due process remedy work? say a post has info suggesting a current visa holder is a drug trafficker - must the post send a letter to the guy, noting the concerns and asking him to come to post for a hearing on the matter?

Because there is no way embassies and consulates are staffed for this. And it would result long term in us issuing many fewer visas in the first place (as you know, those decisions are not reviewable. They practically cannot be - the avg officer in a busy post adjudicates 100 a day and up...)

Posted by: Chris Enloe | Feb 10, 2017 10:19:34 AM

Marty, two other follow-up questions/hypos: (1) what if Congress/President banned *all* immigration for 90 days? Are you arguing that would violate SDP/rational-basis review? That seems absurd, but that hypo is, of course, even more over-inclusive than the actual EO. (2) what if Congress/President banned entry from nations with which we're engaged in armed hostilities? That too, of course, would be massively over-inclusive in that many citizens of those nations would not be hostile to US, so would that violate SDP/rational-basis review also? Again, that seems absurd. All of which is to say that immigration restrictions are allowed to be massively over-inclusive, even as applied to individuals who have DP rights (which most putative immigrants don't).

Posted by: Hash | Feb 10, 2017 10:26:13 AM

"What's '8 U.S.C. 1231 note 8'?"

Certainly a mistake. There are no enumerated code notes on sec. 1231. You can't just count out notes and cite by arbitrary number. Content there should be cited generically as "8 U.S.C. § 1231 note."

A quick search on westlaw shows no one else has ever cited an enumerated note 8 under sec. 1231, but a number of people have citation strings similar to "8 U.S.C. § 1231 note; 8 C.F.R. §..." or "8 U.S.C. § 1231 note; 8 U.S.C. §..."

I'd guess someone just copied and pasted this and accidentally grabbed a second "8."

If that's right, most of the sources from which this could have been copied--at least on westlaw--are citing "8 U.S.C. § 1231 note" in reference to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT). So yes, Asher, you're probably right on the intended content. They probably mean to assert that refugees have certain rights against involuntary return under the implementing legislation for CAT, which is included in the USC as a note under sec. 1231.

Question: Do statutorily protected treaty rights really establish--or serve as evidence of--procedural due process rights? (Serious question. No idea, not my area.)

Posted by: Anon | Feb 10, 2017 10:47:01 AM

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