Brief filed in lawsuit against Trump Administration to have undocumented immigrants counted in census

BOSTON — Lawyers for Civil Rights and Nutter McClennen & Fish LLP filed a friend-of-the-court brief in the U.S. Supreme Court on behalf of national organizations and Boston-based immigrants’ rights and faith-based groups in Trump v. New York, the case that will determine whether undocumented immigrants may be considered in the apportionment calculation for the next ten years. The brief was filed on behalf of six organizations:

Haitian-Americans United
Centro Presente
La Colaborativa
Brazilian Worker Center
National Immigrant Justice Center
American Jewish Committee

The lawsuit challenges a July 21, 2020 Presidential Memorandum which declared it was the policy of the United States to identify and exclude undocumented immigrants from the congressional apportionment base. A three-judge panel in the U.S. District Court for the Southern District of New York found that the issues in the case were “not particularly close or complicated” and issued a permanent injunction declaring that the Memorandum was issued in excess of the statutory authority granted by Congress to conduct the census and apportion members of the House of Representatives.

In a statement, Lawyers for Civil Rights asserts that the Memorandum not only runs contrary to centuries of constitutional and legal precedent, but is impossible to implement as a practical matter because it assumes that “lawful presence” is fixed, fault-based, and binary.

The amicus brief argues that many immigrants, through no fault of their own, may occupy a “liminal” immigration status or lack documentation to support their legal presence. Too, the Memorandum entirely elides the role the federal government can play in making individuals undocumented through, for example, abruptly canceling humanitarian programs such as Temporary Protected Status (TPS).

“The Memorandum explicitly seeks to punish undocumented immigrants and the states in which they live,” said Lauren Sampson, Staff Attorney at LCR. “Our brief emphasizes that no one is illegal and that many immigrants who might be described as undocumented are in fact in the process of obtaining legal status, or, because of global events or delays on the part of the federal government, lack proof of their status. The Framers were clear: ours is a government of the people, by the people, and for the people. The Executive Branch cannot engage in political gamemanship and discrimination to exclude residents from the apportionment base and so reduce the representative power of immigrant-friendly states.”

Oral argument is scheduled at the U.S. Supreme Court for November 30, 2020.

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