Monday, March 10, 2014
Today, the Immigration Policy Center released two publications. One highlights the programs and policies that have vastly expanded U.S. deportations over the past two decades. The second dissects the removal numbers from Fiscal Year 2013 and puts them into context.
The first fact sheet, The Growth of the U.S. Deportation Machine, shows how the U.S. has rapidly expanded enforcement programs since 1996—programs that now run on auto-pilot and are removing noncitizens at a record pace.
The second fact sheet, Misplaced Priorities, shows how, despite the Administration’s claims that they are deporting the most dangerous, high-priority individuals, the system does in fact focus primarily on immigrants with low-level or no criminal histories at all.
Taken together, these two publications clearly illustrate the federal government’s enforcement-first approach to immigration control. The end result has been a relentless campaign of imprisonment and expulsion not of terrorist operatives or violent criminals, but noncitizens who have committed immigration violations and minor crimes. While this campaign precedes the Obama administration by many years, it has grown immensely during his tenure in the White House.
The National Public Radio show "The Takeaway," hosted by John Hockenberry, featured an interview with Immigration Judge Dana Marks, president of the National Association of Immigration Judges and an immigration judge in San Francisco for 27 years, about how the under-resourced immigration courts fail to deliver justice to noncitizens in removal proceedings.
Pulling Strings (2013) (NOW ON DVD)
After a night of drinking, Rachel, a diplomat working in Mexico City finds her world turned upside down after she's saved by Alejandro, a Mariachi singer whose visa was rejected the day before - by Rachel.
Rachel is an intelligent, modern-day woman constantly on the move. Primarily focused on her career as a diplomatic consul for the U.S. embassy, she's literally lived her life on the move, globe-trotting from city to city. Currently working in Mexico City and set to leave for London, Rachel's world turns upside down on the eve of her own goodbye party when she gets drunk and passes out on the street. Saved by Alejandro, a handsome Mariachi singer and single father, Rachel wakes up in his apartment with no recollection of how she got there. Nor does she remember that she rejected his visa the day before, which he desperately needs for his daughter. Romance unexpectedly blossoms between the two, but either sparks or fists will fly after she finds out his secret.
Immigration Article of the Day: Buying Time? False Assumptions About Abusive Appeals by Michael Kagan, Fatma Marouf, & Rebecca Gill
Buying Time? False Assumptions About Abusive Appeals by Michael Kagan (UNLV), Fatma Marouf (UNLV), & Rebecca Gill (UNLV, Political Science), Catholic University Law Review, Vol. 63, 2014 Forthcoming UNLV William S. Boyd School of Law Legal Studies Research Paper
Abstract: The federal government has expressed fear that immigrants abuse the appellate process to delay their deportations by filing meritless petitions for review with the federal courts. Some courts have responded to these concerns by imposing stricter standards for issuing stays of removal, so that the government can more easily deport petitioners even while their appeals remain pending. The risk with this approach is that immigrants who ultimately prevail may be erroneously deported. What is often overlooked is that the potential for abuse is really a function of time, with longer appeals posing a greater threat to immigration enforcement. This study presents new empirical evidence showing that most circuit courts actually decide immigration appeals faster than previously assumed. Moreover, in many circuits the appeals most likely to be frivolous are resolved especially quickly. These results undermine the concerns that lead the government to oppose stays of removal and illustrate the importance of efficient case management systems to the administration of justice.
Press Release: U.S. District Judge Michael Ponsor declared the government’s nationwide policy of shackling detainees during immigration court proceedings unconstitutional, calling it an affront to a person’s dignity. Even the safety considerations cited by the government did not provide it with “unlimited authority” to shackle, wrote Judge Ponsor.
Since November 2012, ICE has enforced a policy of shackling nearly all immigration detainees during court appearances, without regard for their individual circumstances. Courts long ago ruled such blanket practices unlawful in criminal cases. In Judge Ponsor’s decision, the court recognized the “dehumanizing” and “demoralizing” effect of shackling a detainee in immigration court. “To deny or minimize an individual’s dignity in an immigration proceeding, or to treat this essential attribute of human worth as anything less than fundamental simply because an immigration proceeding is titularly civil, would be an affront to due process,” Judge Ponsor wrote.
The court acknowledged the serious problems that shackling poses to a detainee’s defense, noting that during his immigration proceedings, Plaintiff Mark Reid was unable to write notes to his counsel or even to put on his glasses. The court held that the Constitution requires that there be some type of an individualized assessment before a detained alien can be shackled at a hearing.
Judge Ponsor left undecided whether an immigration judge or Immigration and Customs Enforcement (ICE) must do this assessment. The court specifically noted that there may be cases where due process requires that the individualized assessment be done by a judge, not ICE.
The ruling comes on the heels of Judge Ponsor’s February decision to certify a class of all immigrant detainees held six months or longer in Massachusetts without a bond hearing. This ruling will enable Connecticut and Massachusetts residents to challenge the lengthy detention of people who pose no danger to the community. The representative plaintiff for the class is Mr. Reid, a lawful permanent resident from New Haven, Connecticut and veteran of the U.S. Army Reserve. Judge Ponsor ruled in January that Mr. Reid was entitled to a bond hearing. Mr. Reid prevailed at his hearing, and was released after he posted bond. “ICE officials are now on notice that shackling without an individualized determination is unconstitutional, and they may be personally liable for the harm that results,” said Kendall Hoechst, a law student intern with the Worker & Immigrant Rights Advocacy Clinic at Yale Law School, counsel for Mr. Reid. “But we hope that the government hears the court’s message and takes it upon itself to comply with the law.”“I was lucky to have been released on bond, so I do not have to experience the humiliation of being shackled anymore,” says Mr. Reid. “But hopefully this ruling will mean that those currently detained will be spared from the indignity I faced.”
The memorandum and order in the case is at Download 107 - opinion & order on shackling MSJs
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.