JUNE 2018
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Immigration

Dilip Patel

By DILIP PATEL

2020 Census Will Include Citizenship Question

Article I, Section 2, Clause 3 of the U.S. Constitution requires a census be taken every decade to ensure proper apportionment in the House of Representatives. The U.S. Census Bureau, overseen by the Commerce Department’s Economics and Statistics Administration, implements the census. Aside from just population, the census collects valuable data to develop nationwide statistics on economics, health and social issues, and to better allocate federal funding for local education programs, law enforcement, transportation projects, farm aid, and other federally financed activities and programs. The authority to determine the questions on the census is vested in the Secretary of Commerce under 13 U.S.C. §§ 3, 4, and 141(a).

The Justice Department believes including the citizenship question will help it better enforce Section 2 of the Voting Rights Act, which requires a tally of citizens of voting age to protect minorities against discrimination. Commerce Secretary Wilbur Ross assessed all legal, program, and policy considerations and decided to reinstate the question on citizenship on the short-form census questionnaire. The citizenship question was frequently included in past census forms, is still included in the “long-form” census that random households receive, and the DOJ does have a vested interested in receiving accurate and complete data to protect minority voting rights. Secretary Ross acknowledged the concerns that the citizenship question would negatively impact response rates for noncitizens, but noted that “neither the Census Bureau nor the concerned stakeholders could document that the response rate would in fact decline materially” and “there is no information available to determine the number of people who would in fact not respond due to a citizenship question being added, and no one has identified any mechanism for making such a determination.” Consequently, those concerns did not outweigh the interest of collecting accurate and complete data through existing and tried measures. However, Secretary Ross did mention that he believes the best approach going forward would be to use a combination of administrative records and the census to obtain citizenship data. (Previously, as much as up to 30 percent of responses to the citizenship question on the long-form census have been shown to be inaccurate.)

The State of California responded by filing a lawsuit in the federal district court, charging that the move violates the Constitution by interfering with the obligation to conduct a full count of the U.S. population, the “actual Enumeration” as stated in the Constitution and case law, which has held that apportionment must be “based on total population,” regardless of citizenship. The state has the largest immigrant population in the country and is concerned about losing both seats in Congress and federal funding. The National Democratic Redistricting Committee (NDRC), headed by former U.S. Attorney General Eric Holder, also filed suit against the Census Bureau in a federal court in Maryland, arguing that its last-minute decision to add a citizenship status question on the 2020 Census is unconstitutional and a violation of the Administrative Procedure Act . While both complaints were filed in friendly venues, the legal necessity of “standing” is not a forgone conclusion and may ultimately doom both lawsuits.

In short, opponents charge the inclusion of a citizenship question is, according to California, “a partisan act aimed at advancing the Trump Administration’s anti-immigration political agenda, heedless of legal requirements.” However, both the California and NDRC complaints lean heavily on untested (and untestable) assumptions to support their position that the citizenship question would depress response rates, which is the same strategy that failed to establish standing in another lawsuit in the 1980s. Furthermore, the Census Bureau has already published reports that involve the question of citizenship and nationality, such as the January report saying nearly three-quarters of tech employees in Silicon Valley and half in San Francisco and the East Bay were foreign born. Still, the legal challenges to proper procedure under the APA and the Office of Management and Budget rules are much stronger because the Census Bureau did not have time to appropriately test and report on the potential effects of the citizenship question, and it may be those challenges that succeed.

Supreme Court Hands Down Two Immigration Cases

The U.S. Supreme Court decided two important immigration cases recently, one holding that part of the law defining a “crime of violence” for deportability purposes was unconstitutionally vague, and the other case holding that there is no automatic right to a bond hearing for those detained for as long as six months.

In April, the Supreme Court decided Sessions v. Dimaya, a case involving the “aggravated felony” ground of deportability, which includes convictions for certain “crimes of violence.” The federal statute defining crimes of violence includes a broad, catch-all provision (“any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense”). According to the Court, this residual clause isn’t specific enough for aliens with criminal convictions to determine if they would be subject to removal under it. In rendering its decision, the Court relied on a collection of legal principles known as the “vagueness doctrine.” This is an extension of the concept of due process, which is based on the notion that the government has an affirmative obligation to give the people adequate notice of what behavior is proscribed by the law.

A few weeks earlier, the Supreme Court decided Jennings v. Rodriguez, a case involving the constitutionality and validity of prolonged detention. The Court reversed and remanded a Ninth Circuit decision that held that under the Immigration and Nationality Act (INA), prolonged detention becomes constitutionally suspect after six months and therefore provided an automatic right to a bond hearing after six months in detention. In a 5-3 decision, the Supreme Court held that there is not an automatic right to a bond hearing under these circumstances and that the Court of Appeals misread the INA. Because the Ninth Circuit’s decision was a statutory not a constitutional interpretation of what is required, the Supreme Court remanded the case back to the Court of Appeals to determine whether prolonged detention without a bond hearing violates the Constitution.

Not all of those subject to immigration detention are held for months on end. Usually, cases involving detained individuals are given preferential treatment in immigration courts. But there have been a number of instances where, for varying circumstances, an immigrant has been detained for months or even years with no right to appear before an immigration judge to request bond. The plaintiff in this case, Mr. Rodriguez, had been detained for three years while the government tried his removal case.

ICE Detains Pregnant Women

Immigration and Customs Enforcement (ICE) has changed its policies regarding the handling of pregnant women in detention, breaking from the previous practice of automatically releasing them. Under a new directive, immigration officers will no longer default to trying to release pregnant women in ICE custody. Instead, the policy requires a case-by-case evaluation, and ICE will keep in custody “only those whose detention is necessary to effectuate removal, as well as those deemed a flight risk or danger to the community.” Since December 2017, when the policy went into effect, 506 pregnant women have been detained in ICE custody. For those in custody, ICE has committed itself to providing services and acceptable standards of care, but women in their third trimester are unlikely to be detained because they would not be able to fly and therefore could not be deported anyway. The justification for the policy change is to continue to implement the Trump Administration’s message that no one who violates U.S. immigration laws will be free from enforcement.

Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email dilip.patel@bipc.com

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