Sunday, March 9, 2014
ESPN reports the IBF junior middleweight champion Carlos Molina was jailed in Clark County Detention Center in Nevada after immigration officials discovered that Molina had been deported in 2006 and re-entered the country illegally. Molina had been scheduled to defend his title last night against Jermall Charlo at the MGM Grand Garden on the undercard of the Saul “Canelo” Alvarez-Alfredo Angulo main event. Because of Molina's detention, his fight was canceled.
Interestingly, Alfredo Angulo, who fought in the main event, had his own immigration problems a while back and was held in immigrant detention for a lengthy period of time in 2012.
"You want the Democrats who want more immigrants, particularly illegal immigrants, because they need brand new voters, just warm bodies, more votes."
"Amnesty goes through, and the Democrats have 30 million new voters. I just don't think Republicans have an obligation to forgive law-breaking just because the Democrats need another 30 million voters."
Click here for a powerful response to the claims of asylum fraud in the newspapers, including the New York Times, over the last few weeks. The author is Laila Hlass, a cliniical teaching fellow at the Georgetown University Law Center who will join the law faculty at Boston University in July.
Friday, March 7, 2014
Tomorrow, March 8 is International Women's Day 2014.
This year's theme is INSPIRING CHANGE. Women's equality has made positive gains but the world is still unequal. International Women's Day celebrates the social, political and economic achievements of women while focusing world attention on areas requiring further action.Inspiring Change is the 2014 theme for our internationalwomensday.com global hub and encourages advocacy for women's advancement everywhere in every way. It calls for challenging the status quo for women's equality and vigilance inspiring positive change.
My colleagues Professors Jack Chin and Rose Villazor organized a day-long roundtable discussion at UC Davis School of Law of chapters of their forthcoming book, "Legislating a New America," on the 50th Anniversary of the Immigration Act of 1965. The book is under contract with Cambridge University Press and scheduled for release in 2015. Click here for details about the roundtable and the chapters. Here is a draft of my contribution.
From Clergy and Laity United for Economic Justice (CLUE):
Another Bay Area "silent raid."
175-200 immigrant workers unjustly fired this week.
Unfortunately, despite phone calls and community attempts to pursuade ICE and the company to delay the unjust firings, until their wage theft claim was resolved, up to 40 recycling workers at Alameda County Industries were called in this week and have been told they no longer have a job. Many of them are immigrant women and had been working at the company for 7-15 years, making $8.30 an hour sorting recyclables. The workers had recently filed suit that the company was not complying with San Leandro's Living Wage of $14.17/hour. They are part of what we believe are 175 to 200 workers in the East Bay forcibly fired this week because of an ICE enforcement tool, an I-9 Audit, on "Select", a temporary worker agency.
We do not want to let this painful injustice go unnoticed. Please join us for a time of prayer and solidarity at a community rally with the unjustly fired workers. Many of the workers are very brave mothers who have spoken out for dignity on the job and who need our encouragement and moral support.
Not One more Unjust Firing! Join us for Prayer, Solidarity and Protest
Wednesday, March 12, at 1 PM
Alameda County Industries, 610 Aladdin Ave., San Leandro
[For more on "Silent Raids" see David Bacon and Bill Ong Hing, The Rise and Fall of Employer Sanctions, 38 FORDHAM URB. L.J. 77 (2010)]
Next Month's Vigil: "2 Million Too Many"
will take place in San Francisco (not Richmond)
Next month's Vigil will be the 3rd Anniversary of our monthly vigil and it falls on the
2 Million Too Many National Day of Action organized by the Not One More Deportation Campaign, marking the 2,000,000th deportation since President Obama took office.
Because of this, we will be holding April's (April 5th) vigil in San Francisco (most likely at the Federal Building - close to BART).
Please mark your calendars. More details coming soon!
Last Saturday's Vigil: Record Turnout of 125!
Many thanks to the Unitarian Universalist Church of Berkeley and the many different congregations and communities who gathered last Saturday. There was beautiful ritual, moving testimonies from several families in CCISCO, and a drum corp! (Below you will find some photos and inspirational words that were shared.)
"We have been here for 35 months. Sadly, we still need to be here. But our presence has grown in numbers, and in our outreach to those in detention and their loved ones. We are here to bear witness to the suffering of those in detention, and their loved ones. And to make sure that their circumstances are visible, and their stories heard. And we are here to offer hope. We know that through raising our voices, individuals have been released, and reunited with their families.
Others have received legal help.
Loved ones on the outside have received emergency assistance. We know that record numbers of aspiring Americans have been deported in recent years as a result of our unjust immigration system. Families are left without a provider; children are left without a mother or father. But we will not let these individuals go un-named. Those on the inside know we are here. We tell them with our presence that they are not forgotten; that someone cares."
This conference will be held on Saturday, April 5, 2014 (with informal events on Friday, April 4, 2014).
As the nation marks the fiftieth anniversary of the March on Washington and the Civil Rights Act of 1964, there is much to celebrate- and much cause for alarm. The country’s first black president is well into his second term, a development that would have been unthinkable just a few years ago. A number of people of color have entered the middle and upper classes, enjoying financial and educational success far beyond what prior generations could have imagined. Critical race theory scholars - once rejected by their law schools and denigrated by their colleagues - have become a part of the academy, helping to shape the discourse around race and the law and imagine new ways forward. Nevertheless, race continues to impact the opportunities we have, how we’re treated under the law, and other important aspects of our lives.
One of the panel is entitled "Looking to the Bottom: CRT and Immigrants' Rights," with confirmed panelists including César Cuauhtémoc García Hernández (Capital and Blogger, crImmigration.com), Kevin R. Johnson (University of California-Davis), Stephen Lee (University of California-Irvine), and Loreli Salas, Legal Director, Make the Road New York.
Read this interesting post on Papers, Please: The Identity Project about a lawsuit involving the U.S. Departmenl postt of Homeland Security, e-mail surveillance, and questioning of aan Indiana University Sociology professor about her sex life. The comments are almost as interesting as the original post, which made Above the Law.
The Law Of Direct Democracy is the first casebook on direct democracy. This book uses state and federal judicial opinions, the text of ballot initiatives, statutes and constitutional provisions to compare and contrast the various state laws that govern the ballot initiative, the referendum and the recall. This book also contemplates the role of interest groups, voters, courts and elected officials and examines their ability to utilize, influence and limit the initiative process. It provides students and instructors both the information they need to learn the law of direct democracy and the tools to pursue further inquiry on discrete topics of interest.
Imagine this: You're removed from the United States by expedited removal. The CBP decides you're inadmissible and they deport you on the spot. That comes with a five year ban and in some cases, a permanent ban. As you're leaving their facility, one of the officers says not to worry, you can get waivers. He hands you the forms and you go back across the border to Canada or Mexico.
What now? Do you file for the I-212 and I-192 waivers immediately or do you wait a year or two so you can show to the CBP's Admissibility Review Office that you've mended your ways and enough time has passed to think about letting you back in.
Or do you file a petition for review in federal court. You only have thirty days to do so.
If you miss that window, you're out of luck. That rule is jurisdictional and mandatory, decided in Stone v. INS (1995). The justices took on Stone because there was a conflict between the circuits about whether the clock stops while a petitioner pursued review of his deportation to the Board of Immigration Appeal before filing a petition for review with a circuit court. The justices decided that the INA of 1990 had been expressly overhauled to combat dilitary tactics by deportees. Most interesting in this decision, however, is the dissent of Justice Breyer. It merits close reading because Breyer argues that the filing deadline for a petition for review is a claims processing rule - intended to and thus should be open to equitable tolling. Breyer argues that the filing deadline for a petition for review is a claims processing rule and thus should be open to equitable tolling. More on that in a minute.
In 1996, Congress enacted the IIRIRA, a nasty piece of work that included the expedited removal apparatus, expressly designed to quickly rid the United States of convicted felon aliens and habitual immigration violators. The expedited removal statute allows only three acceptable challenges - a) are you an alien; b) was the notice of removal actually issued and c) are you a permanent resident, a refugee or have you been granted asylum? See 1252 (e)(2). Any challenge to an expedited removal had to be filed in district court as a habeas petition.
But even that option was scuttled the Real ID Act of 2005. Congress decided that a challenge to any final order of removal, be it a proceeding under INA 240 (a full deportation hearing) or INA 235 (an expedited removal), could only be heard in an appeals court. Stone's filing deadline of 90 days was whittled down to 30 days.
Interestingly, in De Ping Wang v. DHS (2007), the Second Circuit muses on that jurisdictional bar vis-a-vis habeas petitions.
We are mindful "that Congress, in enacting the REAL ID Act, sought to avoid the constitutional concerns outlined by the Supreme Court in [INS v.] St. Cyr, which stated that as a result of the Suspension Clause, `some judicial intervention indeportation cases is unquestionably required by the Constitution.'" Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 326 (2d Cir.2006) (quoting INS v. St. Cyr, 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)) (internal footnote omitted).
It is possible that in some future case, the particular circumstances that prevented a petitioner from seeking review within the 30-day time limit of § 1252(b)(1) would require us to reexamine whether that limit ought to be treated as jurisdictional now that the petition for review is the exclusive means of obtaining "judicial intervention in deportation cases.
Does RIDA violate the Suspension Clause and thus injure those with legitimate habeas challenges to an expedited removal? It remains to be seen if any of the circuits will eventually try to grant equitable tolling to a petitioner and waive the 30 day filing deadline. Or perhaps the Supreme Court, as evidenced in their recent decision in Henderson v. Shinseki (2011), is getting closer and closer to overturning their own precedent about jurisdictional rules in civil immigration litigation.
Manuel D. Vargas, Senior Counsel at the Immigrant Defense Project, Receives Lifetime Achievement Award from Nation’s Criminal Defense Bar
The National Association of Criminal Defense Lawyers (NACDL) has presented Manuel D. Vargas, senior counsel at the Immigrant Defense Project, with its Lifetime Achievement Award. The award was presented by NACDL President Jerry J. Cox at the opening of NACDL’s 2014 Midwinter Seminar & Meeting, which is devoted entirely to the subject of the collateral consequences of conviction. For more than two decades, Manny Vargas has been a leader in the fight to protect the rights of non-citizens ensnared in America’s massive criminal justice system. He has led the criminal defense bar in coming to grips with the profound immigration consequences that may flow from virtually every encounter that an immigrant has with law enforcement. Indeed, Vargas was an initiator of the Deportation Defense Initiative, a massive pro bono effort in support of immigrant rights, and he co-founded the Defending Immigrant Partnership, a national collaboration to provide legal training and back up support for the defense bar. That partnership, of which NACDL is a proud member, is a sponsor of the collateral consequences seminar at which Vargas received this award.
As Professor Bill Hing reported on the ImmigrationProf blog yesterday, the Florida Supreme Court unanimously agreed with the Obama administration that federal law requires that, in order for undocumented immigrants to be admitted to the practice of law, the state legislature must affirmatively authorize licensing. This court so ruled even though the issue arose in the case of Jose Godinez-Samperio, a noncitizen from Mexico who had been granted relief under the Obama administration's Deferred Action for Childhood Arrivals (DACA) program. The court stated that it was not ruling on Godinez-Samperio's fitness to practice law but instead was focused on the question posed to it by the Florida Board of Bar Examiners: "Are undocumented immigrants eligible for admission to The Florida Bar?"
Recall that the California Supreme Court in January 2014 ruled unanimously that Sergio Garcia, an undocumented immigrant, could be admitted to the practice of law. For analysis of the implications of the case in light of the history of the exclusion of immigrants from the practice of law, click here.
In both the California and Florida cases, the Obama administration filed briefs opposing admission and argued that a state legislative enactment was required by federal law for admission of undocumented immigrants to the bar. In California, after questioning by the Justices during oral arguments suggested that the some Justices thought that legislative authorization was required, the California legislature in a matter of weeks passed legislation. In Florida, the legislature has not addressed the question but the Florida Supreme Court specifcally invited the Florida legislature to act. Justice Labarga's powerful concurrence, which notes the parallels between his immigrant journey from Cuba with Godinez-Samperio's, is particularly emphatic on this point.
As it stands, the lack of legislative authorization seems to be the legal distinction between the California and Florida cases.
There are colorable arguments that the federal law regulating the award "benefits" from public agencies to undocumented immigrants does not apply to licenses to practice law bestowed by the state courts. A legislative fix, however, in Florida apparently would convince the Florida Supreme Court that DREAMers like Jose Godinez-Samperio can be licensed to practice law in the state consistent with federal law. Now the question is whether the Florida legislature will step up to the plate like the California Legislature did.
For further news analysis of the case, click here.
Thursday, March 6, 2014
Could this be any more confusing? I guess the court says we're not going to admit you right now in spite of your daca status; wait for us to rule on the bigger question.
From NBC News:
An undocumented immigrant who applied for a law license in Florida cannot be admitted to the bar, the State Supreme Court said Thursday in a case being watched closely by both sides of the immigration debate.
But the decision, according to legal observers, did not appear to be an actual rejection of the request made by Jose Godinez-Samperio, 26.
Rather, the court indicated it would be deciding on the larger question it had been asked -- whether or not to allow people unlawfully in the country to become lawyers -- and not on a specific individual case.
“In this cause, the Florida Board of Bar Examiners has petitioned this Court for an advisory opinion regarding a clearly stated question. The separate issue of the individual movant's admission is not before the Court,” the court said in a short order.
The Florida Board of Bar Examiners asked the court in late 2011 to decide if undocumented immigrants can be admitted to the state bar after receiving the application of Godinez-Samperio, an undocumented youth who came from Mexico on a tourist visa with his parents as a child.
The board, which filed the request for an opinion last year, said last year that Godinez-Samperio met their requirements though the court has yet to issue an opinion in the case.
After receiving a work permit on Christmas Eve last year under the new deferred action program for undocumented youth, Godinez-Samperio had his lawyer submit a “motion of admission” to the bar in January.
That motion was rejected on Thursday, with the court indicating that the larger question on undocumented immigrants – not the specific case of Godinez-Samperio – was what they had been asked to review even though Godinez-Samperio's lawyer had been making filings in the case.
Bob Blythe, general counsel of the Florida Board of Bar Examiners, said he didn’t “think that it’s accurate to say that the court has denied him (Godinez-Samperio) admission.”
"They’re just saying this case isn’t about his admission but rather the more general question,” Blythe told NBC News. “The answer from the court in this case is going to be whether undocumented immigrants can be admitted and then once we get that then the court will take the appropriate action with regard to his application. … In many respects it really doesn’t change anything at this point.”
Godinez-Samperio said the meaning of the order wasn’t entirely clear to him, but that he too felt the court was saying it would first address the larger question.
“We had moved to the court (in January) to just go ahead and admit me already and it’s a very strange ruling … One thing we are sure about is that I haven’t been denied to become a lawyer yet,” he said, noting that he didn’t view it as a setback.
“If anything … I am glad somebody’s looking at the file and I hope -- although I can’t predict what the court will do -- I hope that this means they’ll make a ruling soon,” he added.
Blythe said the court didn’t have a deadline or time frame for when it would issue a ruling.
Godinez-Samperio came to the U.S. at age nine with his parents from Pachuca, Mexico. They entered the country on tourist visas, which they overstayed. During that time, Godinez-Samperio graduated from high school, college and law school.
A case similar to his in California has reached that state’s supreme court, too. There, the State Bar of California has gone further than its Florida counterpart in saying that Sergio Garcia, a 36-year-old who was born in Mexico and first came to the U.S. as a child, should get a license, noting he had met the rules of admission and that his lack of legal status in the U.S. should not automatically disqualify him.
Congratulations to the UC Irvine Immigration Law Clinic!
From the SF Chronicle:
A state appeals court has strengthened California's application of a little-known federal immigration law that allows minors to seek legal residence if they were brought into the United States illegally but were abused, neglected or abandoned by their parents.
Overruling an Orange County judge who ordered a teenage girl sent back to Mexico because she committed an assault, the Fourth District Court of Appeal said youngsters who break the law remain eligible to apply for legalization if deportation would only subject them to more parental abuse.
Superior Court Judge Gregory Young ruled that Leslie was ineligible for the federal legalization program because she had broken the law, was on a path to "self-destruction" and would be better off if returned to Mexico. But the appeals court said Young had gone beyond his proper role, which was largely to decide whether the girl was in the category of minors covered by the law.
"On this record, (Young) could not reasonably conclude it was in Leslie's best interests to be sent back to Mexico alone and with no one to care for her," said Justice Richard Aronson in the court's ruling.
U.S. Customs and Immigration Services will decide whether Leslie can remain in the United States. "I think she's got a strong case," said Annie Lai, co-director of UC Irvine's Immigrant Rights Clinic, which represented Leslie. Read more...
Abstract: Fifty years after Congress passed the historic Civil Rights Act of 1964, unlawful discrimination continues to ail American workplaces. Despite the prevailing narrative that America is now "post-racial" after the election of the first African American president in 2008, equal opportunity still eludes many Americans. Their membership in racial, ethnic, or religious groups stigmatized as the "other" adversely affects their access to education, political empowerment, and equal opportunity in the workplace.
At the time Title VII was passed, victims often experienced explicit bias against their protected group. The law’s immediate effect was to ban overt prejudice causing disparate intergroup discrimination between men and women, blacks and whites, different ethnicities, and Christians and non-Christians. As a result, Title VII, along with other anti-discrimination laws, has been relatively successful in rooting out explicit bias in employment. Many employers now refrain from overtly treating employees disparately on account of an immutable characteristic. But, as the data show, the absence of discriminatory policies on paper does not always translate into a discrimination free workplace in practice. Rather, it pushes bias into more covert manifestations wherein facially neutral factors become proxies for unlawful discrimination.
While Title VII prohibits covert bias; it is ill equipped to prevent two increasingly prevalent forms of discrimination: 1) implicit bias arising from negative stereotypes of protected classes; and 2) disparate treatment of subgroups of protected classes who do not conform to coercive assimilationist pressures. Because an employee alleging discrimination must show that a similarly situated worker outside the protected class does not receive the same adverse treatment or impact, an employer who treats a subgroup of a minority better than another subgroup of the same minority can evade liability.
Of course, if the difference in treatment among the subgroups is based on performance and skills directly related to the work at issue, then no liability should attach. However, that is not always the case. Disparate treatment of members of the same protected class arises from negative racial, ethnic, or religious stereotypes that privileges those able and willing to perform their identity in accordance with assimilationist demands of the majority group. The effect is intragroup discrimination based on intergroup bias rooted in implicit negative stereotyping.
Female employees who fall under multiple protected classes face an intersection of identity performance pressures as women, racial or ethnic minorities, and religious minorities. The dominant group’s expectations of how women or members of minority groups should behave, dress, and communicate to be "professional" are often contradictory due to conflicting stereotypes. A Black woman, for example, who is assertive, ambitious, and exhibits leadership qualities associated as masculine characteristics, risks being stigmatized as aggressive, insubordinate, and threatening because of negative stereotypes of blacks. Meanwhile, her behavior contradicts gender conformity norms that women should be deferential, gentle, soft spoken, and pleasant. And if she is a Muslim, then her behavior triggers stereotypes of Muslims as terrorists, disloyal, foreign, and suspect.
For workplace anti-discrimination laws to eradicate these multiple binds that disparately impact women of color, this Article argues that Title VII jurisprudence should take into account intergroup discrimination based on intragroup identity performance to assure all employees, not just a subset of a protected class, are covered by workplace antidiscrimination law. A notable consequence of this Article’s thesis is that a plaintiff’s treatment should not be compared only with similarly situated employees outside the protected class but also with similarly situated employees within the protected class whose identity performance accommodates coercive assimilationism rooted in stereotypes.
This Article applies social psychology and antidiscrimination theories to the case of Muslim women of color in the workplace, an under-researched area in legal scholarship. I examine in detail the identity performance challenges and contradictions faced by Muslim women of color as "intersectionals" facing stereotypes against 1) Muslims as terrorists, violent, and disloyal; 2) Muslim women as meek, oppressed, and lacking individual agency; 3) women as sexualized, terminally second best to men, and uncommitted to their careers; 4) immigrants as forever foreign and undeserving of equal treatment; and 5) ethnic minorities from the Middle East and South Asia as barbaric, misogynist, and anti-American.I conclude that Muslim women of color are at risk of falling between the cracks of Title VII jurisprudence due to courts’ unwillingness to recognize the harms caused by coercive assimilationst pressures to conform one’s identity to comport to high status group norms, irrespective of the relevance to work performance.
Wednesday, March 5, 2014
Immigration law scholar Professor Hiroshi Motomura, Susan Westerberg Prager professor of law, has been selected to receive UCLA’s Distinguished Teaching Award. The award UCLA honors individuals who bring respect and admiration to the scholarship of teaching. UCLA honors only six such professors each year.
Professor Motomura is an influential scholar and teacher of immigration and citizenship law. He is a co-author of two immigration-related casebooks, and he has published many significant articles and essays on immigration and citizenship. His book, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States, published in 2006, won the Professional and Scholarly Publishing Award from the Association of American Publishers as the year’s best book in Law and Legal Studies, and was chosen by the U.S. Department of State for its Suggested Reading List for Foreign Service Officers. A companion volume, Immigration Outside the Law, will be published by Oxford University Press in 2014.
From Hermandad Mexicana Humanitarian Foundation:
Another local municipality approved a city council resolution to call on President Barack Obama to stop deportations and grant protected legal status to all eligible undocumented persons. The city of Cudahy, while small as a southeast city in the county of Los Angeles, sends a loud and powerful message to the president that it is time to stop wreaking havoc on our families that result from the unjust removals. In the absence of fair and humane immigration reform this year more and more political jurisdictions, political and civic leaders have called on President Obama to cease and desist in his unprecedented enforcement policies. By the first week of April the Department of Homeland Security (DHS) under his administration will have deported 2 million of our family members. In addition, it is estimated that some 400,000 American citizen minors have been involuntarily returned to Mexico accompanying their deported parents. This is the new phenomena of the undocumented Americans in Mexico and throughout Central America who are denied access to education and health services due to lack of legal papers in the countries of origin of their parents. The Protect Our Families - Save the Children Campaign seeks to put an end to this historic infamy.
The 3rd Circuit has made a finding on what we've known all along: immigration detainers are NOT mandatory on local officials. The case is Gallarza v. Szalcyk __F. 3d __ (3d Cir. Mar. 4, 2014).
Ernesto Galarza is a U.S. citizen who was arrested for a drug offense, posted bail, and instead of being released, was held in custody by Lehigh County under an immigration detainer issued by federal immigration officials. Three days after Galarza posted bail, immigration officials learned that he was a U.S. citizen. The detainer was withdrawn and Galarza was released. Galarza then filed this § 1983 action against, in relevant part, Lehigh County, contending that Lehigh County detained Galarza without probable cause for more than 48 hours, without notice of the basis of his detention or the ability to contest it. The District Court dismissed the complaint against Lehigh County on the basis that it could not be held responsible for Galarza’s detention because it was compelled to follow the immigration detainer. On appeal, Galarza argued successfully that under a plain reading of the relevant federal regulation, immigration detainers are permissive and, to hold otherwise, would violate the anti-comandeering principles inherent in the Tenth Amendment. The court agreed with Galarza that immigration detainers do not and cannot compel a state or local law enforcement agency to detain suspected aliens subject to removal.