Immigrants to Census Bureau: We’re Here and We Count

Lawyers for Civil Rights (LCR) and Nutter McClennen & Fish LLP filed a friend-of-the-court (amicus curiae) 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 national and Boston-based 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, issued well after Census 2020 had begun, 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. 

Our amicus brief 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. 

Instead, the amicus brief argues, drawing upon a range of real world examples, 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.

Nutter McClennen & Fish LLP is providing pro bono support to amici in this important case. The brief is available here: 

20-366-Amicus-Brief