Wednesday, June 29, 2016
President Obama, despite DACA and DAPA, has removed more noncitizens from the United States than any President in. U.S. history. This article looks at the deportation machine that President Obama has built that the next President -- President Trump? -- can use.
The 2015 Term of the Supreme Court just ended. Next Term. the Supreme Court will review two potentially significant immigration cases. Both implicate significant doctrinal issues of immigration law that have perplexed the courts for many years. The Solicitor General sought review of adverse lower court decisions in both cases.
The cases are:
Jennings v. Rodriguez, No. 15-1204
Issue(s): (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.
This immigration detention case will give the Court the chance to address immigrant detention, which has skyrocketed since 1996 immigration reforms. The Obama administration has employed detention as an immigration enforcement tool and some immigrants have been held in detention indefinitely pending removal. Because some nations have refused to accept some immigrants subject to removal, some immigrants have been indefinitely detained. The circuits are split and the Supreme Court has decided a number of immigrant detention cases (Zadvydas v. Davis (2001) and Demore v. Kim (2003) in somewhat inconsistent fashion in the post-1996 era. Indefinite detention without bond possibilities are unheard of with respect to criminal defendants. The lower courts have reached different conclusions on immigrant detention issues.
Lynch v. Morales-Santana, No. 15-1191
Issue(s): (1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so. The Second Circuit agreed with Morales-Santana that the gender distinctions in the derivative citizenship provisions was unconstitutional.
The Supreme Court has been sharply divided on the lawfulness of gender distinctions in the laws granting citizenship to children. See, for example, Flores-Villar v. United States (2011) and Nguyen v. INS (2001). Besides the issue of gender stereotypes, Morales-Santana implicates the venerable plenary power doctrine , which historically has shielded the immigration laws from judicial review. Although there have been "cracks" in the doctrine, it remains largely intact.
As Elizabeth Keyes correctly points out, all of the new immigration judges are former trial attorneys. So much for diversity.
Colorlines reports on Los Illegals, which "picked its band name in part as a big middle finger to the xenophobic bias plaguing Chicanos in East Los Angeles. As the historic band's bassist Jesus Velo explained in a new interview, the group's name pissed off many Latinos—but not for the obvious reasons." "So Los Illegals are [hybrid]–'Los' [in Spanish] and 'Illegals' in English, which the Mexicans gave us shit for," Velo told Remezcla. "'What's with this? You don't like saying it all in Spanish.' It was like, give us like a fucking break!"
BBC News's "Reality Check Team" offers cogent analysis of the Brexit Leave campaign, comparing the pre-election promises and post-election pronouncements on immigration.
The Leave campaign platform emphasized the idea that the UK could better control immigration if it left the EU. And that immigration was overstretching the country's social services. As the Reality Check team notes:
Responding to the latest Office for National Statistics (ONS) figures, which showed that overall net migration stands at 333,000, MEP Nigel Farage said: "Mass immigration is still hopelessly out of control and set to get worse if we remain inside the EU."
Though Mr Farage was not part of the official Vote Leave campaign but campaigned in favour of leaving the EU, similar claims were later echoed by Vote Leave campaigner Gisela Stuart.
She said voting to remain meant there would be "no control" over migration from the EU, "no matter how great the pressure on schools, hospitals and housing becomes or how much wages in our poorest communities are pushed down".
Similarly, leading pro-Leave campaigner and Tory leader front runner Boris Johnson said that the only solution to the scale of immigration which the UK was facing, was to leave the EU.
He claimed a vote to stay in the union would mean people "kissing goodbye permanently to control of immigration".
The Leave campaign also repeatedly linked EU migration with pressure on public services.
On the 20 May, Vote Leave produced a document which it claimed outlined the pressure that migration from the European Union would put on the NHS - a 28% to 57% increase in demand for accident and emergency services.
That last bit, the BBC Reality Check Team disputes, noting: "As we discovered, an increasing population would put additional demand on A&E but the extent of that increase had not been demonstrated."
But the Leave politicos now appear to be backtracking. Some Leave campaigners are positing that "the UK's decision to leave the EU would not guarantee a significant decrease in immigration levels." And, as I noted on Monday, Leave politician Boris Johnson now claims that the exit vote wasn't about immigration at all.
Johnson is not the only one to switch the message.
[S]peaking to the BBC's Newsnight programme on Saturday, MEP Daniel Hannan insisted the public had not been misled over how much control the country would have over immigration post-Brexit.
In a heated exchange with Evan Davis, he said: "We never said there was going to be some radical decline ... we want a measure of control".
"Frankly, if people watching think that they have voted and there is now going to be zero immigration from the EU, they are going to be disappointed."
Colorlines Publisher & Race Forward Executive Director, Rinku Sen in "More Shattered Families" contextualizes the experiences of those ultimately affected by the Supreme Court's DACA/ DAPA decision in United States vs. Texas. “It’s easy to say, 'Kick ’em all out,' but the people you want to kick out have children, siblings and partners who are not going anywhere."
From the Bookshelves: John Lennon vs. The U.S.A.: The Inside Story of the Most Bitterly Contested and Influential Deportation Case in United States History by Leon Wildes
John Lennon vs. The U.S.A.: The Inside Story of the Most Bitterly Contested and Influential Deportation Case in United States History by Leon Wildes. TO BE RELEASED IN AUGUST 2016.
At a time when the hottest issue in US immigration law is the proposed action by President Obama to protect from deportation as many as 5 million illegals in the United States, the 1972 John Lennon deportation case takes on special relevance today, notwithstanding the passage of forty years since he was placed in deportation proceedings.
For the first time, noted New York immigration attorney Leon Wildes tells the incredible story of this landmark case – John Lennon vs. The U.S.A. -- that set up a battle of wills between John Lennon, Yoko Ono, and President Richard Nixon. Although Wildes did not even know who John Lennon and Yoko Ono were when he was originally retained by them, he developed a close relationship with them both during the eventual five-year period while he represented them and thereafter. This is their incredible story.
Human trafficking is not simply a sex trafficking problem in the United States. It is a general labor market problem.
Adam Lidgett of Law 360 reports that the ringleader of a human trafficking organization was sentenced to just more than 15 years in prison for luring Guatemalan minors to the United States under false pretenses and forcing them to work on egg farms in Ohio. Here is the U.S. Department of Justice press release about the case.
U.S. District Judge James G. Carr of the Northern District of Ohio sentenced Aroldo Castillo-Serrano to 188 months in prison and Ana Angelica Pedro-Juan, his co-defendant, to 10 years in prison. The two were accused of finding workers from Guatemala, some only 14 years old, and falsely promising them good jobs and an education in the U.S., the Justice Department said. “These defendants forced minors to work around the clock and live in inhumane conditions, while threatening them and their relatives,” Acting U.S. Attorney Carole S. Rendon said in a statement. “Today’s prison sentence underscores the severity of these human trafficking cases, but also should serve as a reminder that these cases happen all around us in plain sight.”
The Justice Department said Castillo-Serrano would lure the Guatemalan workers into the U.S. only to transport them to a dilapidated Marion, Ohio trailer park. The workers, eight minors and two adults, were forced to work physically demanding jobs at a farm for up to 12 hours a day for little pay. Some of the work included debeaking chickens and cleaning their coops, the Justice Department said. Castillo-Serrano would threaten the workers to make sure they were compliant.
Castillo-Serrano pled guilty in August to conspiracy to commit forced labor, forced labor, witness tampering and alien harboring, while Pedro-Juan pled guilty in December to conspiracy to commit forced labor. They are also forced to pay more than $67,000 in restitution to the victims of the fraud.
The case was brought in the U.S. District Court for the Northern District of Ohio.
Tuesday, June 28, 2016
Julianne Hing writes for The Nation:
The Supreme Court’s one-sentence non-ruling in the most important immigration case of the year landed Thursday with an enormous impact. The 4–4 deadlock effectively killed President Obama’s deportation-deferral program for the rest of his presidency. In the immediate, the estimated 4 million undocumented immigrants who would have benefited from the initiative are returned to their precarious lives. In the short term, the Supreme Court’s result revives a longstanding debate about where immigration advocates ought to pivot—to return the focus to a full congressional overhaul of the system or keep pushing for more creative executive action to stop deportations.
The past eight years have shown that Latino and immigrant voting power, which helped propel Obama to victory and reelection, does not on its own determine immigration policy. Congress and the Republican Party, now the Party of Trump, have made a weapon out of doing nothing. That’s why, the Court’s ruling notwithstanding, congressional politics are still not at the top of all immigrant advocates’ priority list. They remain focused on demanding that Obama put a moratorium on deportations.
. . .
Hillary Clinton, acknowledging that, has even painted herself into the kinds of corners Obama did as a candidate to emphasize her sympathies. In February Clinton pledged to keep immigration as among her top priorities and, pressed by MSNBC’s Jose Diaz-Balart at a town hall, said she’d introduce comprehensive immigration-reform legislation in the first 100 days of her presidency. Immigration watchers have heard those promises before.
“We’ve heard that talk before, but let’s take it at face value,” Kica Matos, director of immigrant rights and racial justice at the Center for Constitutional Change Action, told me. “Ultimately our goal is to bring about comprehensive immigration reform.” Matos said that especially in the wake of the Supreme Court decision, the dozens of immigrant-rights groups she worked with across the country had arranged their political activities with that goal in mind. The main priority now, especially as DAPA winds its way back through the courts, will be to mobilize Latino and immigrant voters to head to the polls in November, Matos said. CCC Action plans to focus on three key battleground states—Colorado, Florida, and Nevada—which all have large immigrant and Latino populations. Matos said her group has also identified a handful of Senate races they want to affect outside of those battleground states: Republican Senators Mark Kirk of Illinois, Ron Johnson in Wisconsin, and Pat Toomey of Pennsylvania. And the reality is, no matter how pro-immigrant Clinton may be as president, the future of comprehensive immigration reform depends on the composition of Congress.
CCC Action’s goal is to create the conditions for comprehensive immigration reform to be politically viable come 2017. But some of the changes that are necessary for that to occur sound like wishful thinking. They include not only a Clinton win in November but also a Democratic retaking of both houses of Congress, and still at least some of the Republican Party will have to do a 360 on immigration, “after they realize they need to get right with this issue unless they want their party to disintegrate completely,” Matos said. “I know these are a lot of variables to take into consideration, but we have been thinking through what it will take to win and at least if we are successful with civic engagement efforts and mobilizing voters, there is a possibility we will be able to bring about comprehensive immigration reform.”
These promises for the future can seem awfully far off. The immigrant-rights movement, with so much at stake, faces few easy options from here. Read more...
Law360 reports that the U.S. Supreme Court today agreed to hear an appeal over the grant of citizenship to a man born in the Dominican Republic to an unwed citizen father and noncitizen mother, in a case that deals with a gender discrepancy in immigration law between how citizenship is given to kids born abroad to unwed parents. The justices agreed to take up Lynch v. Morales-Santana, after the Solicitor General sought review and to reverse a Second Circuit decision granting citizenship to a man born in to a noncitizen mother and an unwed citizen father.
The Second Circuit ruling had found that petitioner Luis Ramon Morales‐Santana is a citizen by birth. Although he entered the U.S. as a green card holder in 1975, he was placed in deportation proceedings in 2000 after having been convicted of felonies, according to the Second Circuit decision. The case touches on a gender discrepancy in immigration law between how citizenship is given to children born abroad to parents who aren’t married. The rules make it more difficult for citizen fathers to confer citizenship, compared to citizen mothers. Specifically, under the version of the Immigration and Nationality Act in effect when Morales‐Santana was born, a child born outside the U.S. to an unmarried citizen mother and noncitizen father has citizenship at birth if the mother was present in the U.S. or a territory for a continuous period of at least one year before the child was born, or if the father was present in the U.S. for at least 10 years and at least five after turning 14. The Second Circuit struck down those provisions on equal protections grounds, saying fathers should have the same benefits given to mothers under the statute.
The Second Circuit’s decision conflicted with the Ninth Circuit’s 2008 holding in United States v. Flores‐Villar, which upheld the residence requirements on U.S. citizen fathers’ ability to transmit citizenship to kids born abroad outside of marriage to a noncitizen. The Supreme Court granted certiorari in an appeal of that decision, and reached a 4-4 decision — with Justice Elena Kagan recusing herself.
Morales-Santana has argued the rules were based on “archaic and overbroad stereotypes” about the roles that mothers and fathers have in the lives of children born to unmarried couples. The high court’s decision to hear the case comes after it declined to hear another notable case dealing with citizenship.
The question presented by the SG's petition is whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.
Immigration Article of the Day: Climate Change and Human Trafficking After the Paris Climate Agreement by Michael Gerrard
Climate Change and Human Trafficking After the Paris Climate Agreement by Michael Gerrard
Columbia University - Law School, June 3, 2016,
Sabin Center for Climate Change Law, Columbia Law School, 2016
ABSTRACT: Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa and other parts of the continent. Climate change can cause displacement in multiple ways. No reliable estimates exist of the number of people who will be displaced partly or wholly by climate change, due to uncertainties concerning the rate of climate change, the ability of different societies to cope with this change, and other factors. However, several estimates put the number of people in the hundreds of millions in the latter part of this century. It is well documented that displacement leads to a considerable increase in human trafficking (often for sexual exploitation or forced labor) and smuggling (which often leads to fatalities in transit). Climate change represents one of the most profound injustices in today’s society, for those who will suffer the most, those displaced from their homes, are the poorest among us – those who contributed the least to the excess energy use that is at the root of much of the problem.
The Obama administration's dismantling of the Secure Communities program in November 2014 was overshadowed by the new expanded deferred action programs that made their way to the Supreme Court. The hope was that the new Priority Enforcement Program (PEP) would focus on convicted serious criminal offenders in removal efforts, not simply immigrants arrested for any crime.
Sara Rathod in Mother Jones offers some reasons for concern with the new PEP program based on an ACLU study.
For years, advocates had argued that Secure Communities, which among other things required police to share arrestees' fingerprints with federal immigration officials, trampled immigrants' civil liberties and instilled a deep fear of law enforcement in immigrant communities. Now, civil liberties groups have turned their focus to a pilot program at a county jail in Fresno, California, that allows Immigration Customs and Enforcement (ICE) unprecedented access to inmates and their records at the time they're locked up. If left unchecked, they say, the program could be almost as bad for immigrants as was Secure Communities. Lack of transparency, lack of oversight, surprise interrogations, and uncertainty about who is deported are a few of the problems. Read the article for more.
Monday, June 27, 2016
Congratulations to American Immigration Council, American Civil Liberties Union, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP
A federal court has granted class-action status to a lawsuit challenging the federal government's failure to provide children in immigration court with lawyers in their deportation hearings. Several thousand children are estimated to be members of the class.
The ruling stems from a lawsuit filed by the American Immigration Council, American Civil Liberties Union, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP.
“This ruling means that thousands of children will now have a fighting chance at getting a fair day in immigration court,” said Ahilan Arulanantham of the ACLU’s Immigrants’ Rights Project and the ACLU Foundation of Southern California. “The Obama administration should stop defending its draconian practice of conducting deportation hearings against unrepresented children.”
The class covers all children under 18 who are in immigration proceedings in the Ninth Circuit on or after June 24, 2016; lack counsel; are unable to afford legal representation; and are potentially eligible for asylum or are potentially able to make colorable claims to U.S. citizenship.
“The government will not be able to simply delay the case in hoping that a few individual cases may resolve themselves without court intervention. Instead, the government must now defend a system that pits unrepresented children against trained federal prosecutors in an adversarial court hearing that literally may carry life and death consequences for the children involved,” said Matt Adams, legal director of the Northwest Immigrant Rights Project.
The lawsuit, J.E.F.M. v. Lynch, was filed in U.S. District Court in Seattle. It charges the Departments of Justice, Homeland Security, and Health and Human Services with violating the Constitution’s Fifth Amendment Due Process Clause and the Immigration and Nationality Act’s provisions requiring a “full and fair hearing” before an immigration judge.
“This is great news for thousands of children who can now join our lawsuit against a government forcing them to go to immigration court alone,” according to Melissa Crow, legal director of the American Immigration Council. “Under no circumstances should children be forced to represent themselves against trained prosecutors seeking their deportation.”
“Years of experience representing children in immigration court has taught us a simple fact: Children, no matter their circumstances, cannot have a fair hearing without a lawyer,” said Kristen Jackson, senior staff attorney at Public Counsel. “The court’s order recognizes the challenges that immigrant children share and it puts us closer to a day when no child will have to face an immigration judge alone.”
The ruling is here.
Wendy Feliz, American Immigration Council, 202-507-7524, firstname.lastname@example.org
Inga Sarda-Sorensen, ACLU, 212-284-7347, email@example.com
Matt Adams, Northwest Immigrant Rights Project, 206-501-6249, firstname.lastname@example.org
Marie Condron, Public Counsel, 213-925-9605, email@example.com
Boris Johnson, photo via the Financial Times
Boris Johnson, head of Brexit's Leave campaign, published his weekly column in The Telegraph today. His message may not be what you would have expected.
Johnson wrote: "I cannot stress too much that Britain is part of Europe, and always will be." He continued: "EU citizens living in this country will have their rights fully protected, and the same goes for British citizens living in the EU." Specifically, he wrote, "British people will still be able to go and work in the EU; to live; to travel; to study; to buy homes and to settle down."
That last bit seems like wishful thinking. As a non-EU member, the UK will be entirely unable to guarantee how their citizens abroad will be treated. They may be able to live and work in the EU if they qualify for visas.
Vox characterizes the Johnson article as "backtracking" on immigration promises. I'm not quite sure I'd go that far. After all, Johnson makes clear that "Yes, the Government will be able to take back democratic control of immigration policy, with a balanced and humane points-based system to suit the needs of business and industry."
But Johnson is surprisingly clear that Brexit wasn't about immigration. ("It is said that those who voted Leave were mainly driven by anxieties about immigration. I do not believe that is so.") Rather, "the number one issue was control – a sense that British democracy was being undermined by the EU system, and that we should restore to the people that vital power: to kick out their rulers at elections, and to choose new ones." Thus, Johnson concludes:
The only change – and it will not come in any great rush – is that the UK will extricate itself from the EU’s extraordinary and opaque system of legislation: the vast and growing corpus of law enacted by a European Court of Justice from which there can be no appeal.
Jacqueline is a 33-year-old lesbian from Cameroon. Because of Jacqueline’s sexual orientation, she experienced horrific violence and was thrown in prison. Jacqueline wasn’t able to feel safe in Cameroon. Fortunately, she was able to escape to the United States.
Jacqueline asked for asylum in April 2016 and was detained immediately afterward. She is currently detained at the Mesa Verde Detention Facility in Bakersfield where she has been for over a month. She was recently visited on June 18th by Cameroonian lesbian refugee friends who found Jacqueline weak, emaciated, and feeble. Jacqueline said that it was the first familiar face she had seen in almost 4 years.
Recently, ICE granted her a bond of $3,000 in order to release her from the detention facility. Unfortunately, without any family and a very limited support system here in the United States, she is unable to afford this bond. She is currently receiving support from her friend, Cameroonian lesbian activist Gertrude who is willing to help her and welcome her in her home throughout Jacqueline’s asylum process. Gertrude, her partner, and their child themselves have limited finances and can’t afford the bond.
Any donation will be greatly appreciated and will be life-saving. It is wrong that during Pride month, LGBTQ asylum-seekers like Jacqueline are trapped in immigration prisons because of poverty. If you are unable to donate, please share with your friends and network.
Click here to donate. Thank you.
Pratheepan Gulasekaram and Karthick Ramakrishnan in the Washington Post (How the Supreme Court’s deadlock will change immigration politics) analyze US v. Texas through the lens of immigration federalism. Here is another op/ed in the Los Angeles Times with further analysis of the Supreme Court's non-decision.
Voice of America reports that the International Organization for Migration has found that 19 Ethiopian migrants suffocated to death earlier this month along Zambia's border with Congo inside a container truck, where survivors inside banged on the sides until border officials opened it.
The International Organization for Migration reports the deaths occurred as the victims were being transported by a suspected trafficking syndicate in Chembe district in Luapula Province of Zambia. It says they were crammed into the truck, which was carrying bags of beans and groundnuts.
The political and economic fallout from the Brexit vote was felt almost instantaneously, as Prime Minister David Cameron announced his resignation and stock markets around the world plunged within hours of the results. The ramifications for migration policy and future immigration levels will take far longer to ascertain, however.
In a timely commentary, Migration Policy Institute UK Senior Fellow Will Somerville examines the likely near- and longer-term items on the policy agenda, including the rights of EU nationals already resident in the United Kingdom, negotiation of new border-control arrangements, and decisions over future admissions.
Several trends are plausible, Somerville writes, including spikes in migration of EU nationals seeking to reunify with family or otherwise secure their status ahead of rule changes, as well as increased irregular immigration. And while future migration levels are impossible to predict amid such policy and economic uncertainty, he estimates that the United Kingdom would continue to receive 500,000 or more immigrants annually from the European Union and beyond, with annual net migration around 200,000. That would be twice the level of the controversial net migration pledge that the Cameron-led Coalition government and Conservative successor failed to meet—fueling public anxiety about government’s ability to manage migration. In a recent MPI report, Somerville and co-author Sunder Katwala examined British public attitudes towards immigration, and the role that migration played in the call for a referendum and recent politics within and beyond the Conservative Party.
Examining the challenges ahead as the United Kingdom charts a new course, Somerville concludes in his commentary: “The new Prime Minister would be advised to underpromise and overdeliver on migration or risk further backlash.”
Saturday, June 25, 2016
Food for thought. Many news reports are covering Donald Trump's efforts to cast Britain’s decision to leave the European Union as a revolt against unfettered immigration into the West. The Brexit vote emboldened both the billionaire’s anti-establishment bid for president and other break-away efforts across Europe. From the Netherlands to France, political parties opposed to high immigration levels are demanding their own referendums on EU.
Click here for more nuanced analysis of the impact of immigration on the Brexit vote.