Bias and Immigration: a New Factors Test to Examine Extrinsic Evidence of Animus in Immigration Cases

• Publication year: 2021

Bias and Immigration: A New Factors Test to Examine Extrinsic Evidence of Animus in Immigration Cases

Andrea Galvez

BIAS AND IMMIGRATION: A NEW FACTORS TEST TO EXAMINE EXTRINSIC EVIDENCE OF ANIMUS IN IMMIGRATION CASES^†

ABSTRACT

Courts have historically struggled to consistently consider extrinsic evidence of animus and bias in immigration cases. In two key cases concerning challenges to restrictive immigration policies of the Trump Administration—Trump v. Hawaii and DHS v. Regents of the University of California—the Supreme Court shied away from considering numerous examples of former President Trump's discriminatory rhetoric and public comments of religious and racial animus that would challenge the constitutionality of the policies. Instead, the Court invoked the historically prominent deference to the executive branch's immigration power and to the interest in national security. However, the Court's quick dismissal of extrinsic evidence of biased comments departs from compelling legal precedent. In multiple previous cases concerning immigration and other matters, courts have looked beyond the record at public statements made by high-ranking government officials involved in the promulgation of policies that became the subject of legal challenges. Thus, courts' inability to consider extrinsic evidence of animus stemming from former President Trump exposes a weakness in the existing legal analytical framework and suggests the need for an alternative test. Deference to national security should not justify excluding entire categories of evidence that may reveal the unconstitutionality of an immigration law.

To address these shortcomings, this Comment proposes a new factors test to assist courts in considering how much weight to give to external statements of bias and animus in immigration cases. Courts should weigh five key factors: (1) the identity of the speaker, (2) the temporal proximity between the biased statement and the challenged government action, (3) the scope of the statement's entry in the public sphere, (4) the frequency of the statements, and (5) whether a reasonable observer would view the government action as enacted because of animus toward a particular protected class. In a post-Trump era where unbridled political rhetoric has been normalized, use of this new test will allow courts to deal with overt statements of bias more consistently and avoid upholding discriminatory immigration policies under the guise of national security.

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INTRODUCTION ............................................................................................... 59

I. BACKGROUND ON IMMIGRATION, CONSTITUTIONAL, AND ADMINISTRATIVE LAW ........................................................................ 61

A. Immigration Law, Deference, and National Security ................. 62
B. Standards in Constitutional and Administrative Cases .............. 67

1. Equal Protection ................................................................... 67
2. Establishment Clause ........................................................... 69
3. Administrative Procedure Act .............................................. 70

II. HOW COURTS EXAMINE EVIDENCE OF ANIMUS AND BIAS .................. 72

A. Bias and Animus ......................................................................... 73
B. Evidence Law, Extrinsic Evidence, and the Administrative Record ........................................................................................ 76

III. WHEN COURTS LOOKED BEYOND TO EXTRINSIC EVIDENCE ............... 78

A. Foundational Cases .................................................................... 79
B. Cases in Which the Supreme Court Looked Beyond ................... 81
C. Trump Administration Immigration Cases ................................. 88
D. Lower Courts' Approaches ......................................................... 94

IV. A NEW TEST FOR EXTRINSIC EVIDENCE OF BIAS IN IMMIGRATION CASES .................................................................................................. 97

A. Shying Away from Extrinsic Evidence ........................................ 97
B. A New Balancing Test .............................................................. 100

V. IMPLICATIONS .................................................................................... 103

A. Implications on the Law ........................................................... 103
B. Implications on Policy .............................................................. 103

CONCLUSION ................................................................................................. 104

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INTRODUCTION

Courts have struggled to consistently deal with external evidence of bias and animus.¹ This inconsistency poses a unique risk in the context of immigration law. In ruling on immigration policies, courts must balance deference to the executive branch's immigration power and to national security, with protecting against unlawful discrimination and other constitutional violations.² This balancing act was proven problematic and inadequate when, against the backdrop of divisive, discriminatory rhetoric from the executive,³ courts were faced with constitutional challenges to the Trump Administration's harsh immigration policies.⁴

In cases concerning the constitutionality of the Trump Administration's immigration policies, the Supreme Court departed from precedent in failing to

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consider evidence of bias, animus, and prejudice from the executive and other high-ranking government actors involved in the promulgation of the laws at issue—evidence that undermines constitutionality. In Trump v. Hawaii,⁵ the case concerning former President Trump's Muslim travel ban, the Supreme Court ignored the former President's public statements made on Twitter and on the campaign trail that demonstrated an anti-Muslim animus and quickly dismissed the statements as extrinsic evidence that need not be considered.⁶ Similarly, in DHS v. Regents of the University of California,⁷ the Court ignored former President Trump's public statements when it dismissed an Equal Protection claim.⁸ However, this treatment of extrinsic evidence is inconsistent with the court's practice both in other immigration-related cases⁹ as well as in cases from other areas of the law.¹⁰ Furthermore, many lower courts have grappled with such evidence of the executive's publicly-made and publicly-available statements of bias and animus instead of shying away and ignoring them.¹¹ Although certain statements may seem clear to the general public as indicative of prejudice toward a certain class of people grouped by race, nationality, or gender, courts have struggled to deal with such explicit indications of bias in a consistent manner, particularly in the context of immigration. As divisive rhetoric becomes more pervasive and publicly normalized, a new test is needed to ensure that a national security justification only protects immigration policies that are constitutional.

To address this inconsistency, this comment argues for the adoption of a new factors test to help courts determine whether to consider the public statements of high-ranking government officials in immigration cases concerning constitutional issues. This comment builds upon the holistic factors specified by the Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corporation,¹² which include (1) the decision's historical background, (2) the "sequence of events leading up to the challenged decision," (3) the departure from normal procedure, and (4) the "legislative or

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administrative history."¹³ There is also a compelling reason to consider such statements when the public would reasonably understand the statements to be biased.¹⁴ Thus, courts should carefully consider frequent, public statements made by high-ranking government actors closely involved in the matter at issue. Although courts afford great deference to the executive in matters of national security and immigration, this deference should not automatically disqualify the consideration of extrinsic evidence of animus in constitutional cases when a compelling reason to do so exists.

Before turning to the implementation of the new factors test, this Comment provides a background in immigration law, constitutional issues, and the existing methods of analysis courts have used in similar cases. First, Part I reviews relevant principles of immigration, constitutional, and administrative law. Part I.A examines the history of immigration law and the judiciary's deference to both national security and the executive's immigration power. Next, Part I.B turns to the existing standards for constitutional cases concerning the Equal Protection and the Establishment Clauses of the Constitution and administrative cases under the Administrative Procedure Act (APA).¹⁵ Part II reviews the doctrine of animus, evidence law, and the administrative record. Part III reviews various cases from before and during the Trump Administration in which courts considered statements of bias or prejudice, and then juxtaposes these precedents with the Supreme Court's minimal treatment of biased statements in Trump v. Hawaii and DHS v. Regents of the University of California. In Part IV, this Comment argues that although the Supreme Court has developed two lines of precedent, the Court's recent treatment of evidence of bias as "extrinsic" is inconsistent with the more compelling precedent and that, instead, courts should employ a new factors test to more thoroughly evaluate explicit statements of bias when such statements are sufficiently relevant, clear, and public. Finally, Part V reviews the implications on law and policy that arise from employing this test.

I. BACKGROUND ON IMMIGRATION, CONSTITUTIONAL, AND ADMINISTRATIVE LAW

Because this Comment analyzes cases that consider challenges to different rights in the broad realm of immigration...