Thursday, December 18, 2014
One of my fellow volunteers at Artesia was Eric Dominguez, pictured above hard at work in the church conference room that served as volunteer headquarters. Eric's natural good humor made working under incredibly difficult circumstances not just bearable but enjoyable. And his help with clients was invaluable. When a client asked me to call her partner's boss to try and elicit his help with posting a high bond, I had no idea how to approach the task. Eric suggested that I call and simply begin by saying "I understand that you have some questions about posting bond." It worked like a charm.
Eric came to Artesia from Orange County, California. He is a lawyer in the prestigious immigration firm Fragomen, where he focuses on immigrant and nonimmigrant visas for small, mid-size, and large multi-national clients in industries including entertainment, technology, and pharmaceuticals.
KJ: Why did you sign up to volunteer at Artesia?
ED: The images of women and children arriving at the US-Mexico border reminded me so much of images seen throughout our nation's history. The plight of this specific group is compounded when considering the danger they face just to arrive at the border - Sonia Nazario's book Enrique's Journey provides a chilling account. As an attorney and a Latino, there was a duty to make the final leg of this often treacherous journey a bit more bearable. I am fortunate to work at an office that shares this sense of duty and that encouraged my participation in the pro bono project in Artesia.
KJ: What was your toughest experience at Artesia?
ED: Having to break the news to 7 families that they would not have their bond hearings until the following week because the court did not have time to hear their cases that day. Prepping these mothers and children the day before and earlier that morning, you could feel the excitement that an end to their detention was near. To turn to these eager faces and explain that the inedible food, near freezing temperatures, and a constant state of fear that they would be uprooted and transferred without notice would continue for at least another week, was heartbreaking.
KJ: What was your most heartwarming experience at Artesia?
ED: My memory of sitting with a detainee and her son who were granted asylum as they called their family in the US and abroad to tell them the good news. At the end of the call, as I let the two know they'd be leaving today, I asked the little boy the most important question of the process: "Que quieres para cenar?" Without hesitation "PIZZA!" was the response - a child after my own heart. Instances like that make you remember the value in keeping up the fight.
KJ: Are you glad you went to Artesia?
ED: Absolutely. I think that while we are aware of the problems going on around us, it is very easy to retreat to our comfortable bubbles (especially in Orange County). Going to Artesia, served as a reminder to be thankful for the gifts and opportunities that we've been given. It is our responsibility to help other individuals discover theirs.
KJ: What have you taken away from your experience?
ED: I left Artesia with mixed emotions. While I was overwhelmed with the terrible conditions faced by detainees and the seemingly impossible task faced by the on-the-ground coordinators who juggle hundreds of cases and a revolving door of volunteer attorneys, I also left with a sense of hope. Because a real passion does exist in our legal community to help these individuals, perhaps this is a battle that can be won. The week I was in Artesia, we had a relatively small staff of 3 volunteer attorneys. Despite this small number, more than 50 bonds and one asylum claim were granted and kids, who endured a level of violence and abuse that no child ever should, would be spending Christmas outside the walls of Artesia with their families throughout the US.
KJ: How was the experience for you as someone who does not routinely appear in immigration court?
ED: Practicing business immigration, where our contact with DHS consists of mailing strongly-worded letters to a monolithic government building and waiting a written response, immigration court presented an opportunity to look into the eyes (via closed circuit television) of not only the adjudicator but of the ICE attorney. While reading a boilerplate RFE from USCIS allows me ample eye-rolling opportunity, I was not afforded this luxury as opposing counsel repeatedly made the argument that the tiny indigenous women and children we represented were part of a smuggling network and threats to national security. As the hearings went on, I began to wonder if opposing counsel actually believed the arguments they were making or if they were simply doing what they were told in order to climb from one alpha-numeric government classification to another. As my colleague, Megan Jordi noted in her piece, the feeling we gathered among many of the ICE officers was that they viewed the detaining of these women and children as an exercise in futility. After a week of hearing different ICE attorneys parrot the same arguments to the Immigration Judge who had heard them thousands of times before, I left Artesia wondering if this sentiment had finally made its way to the Denver Immigration Court and Washington DC. Would it ever?
Wednesday, December 17, 2014
Supreme Refuses to Stay Ninth Circuit Ruling Finding that Arizona Could Not Deny DACA Recipients Driver's Licenses
SCOTUSblog reports that, over the dissents of Justices Scalia, Thomas, and Alito, the Supreme Court today rejected Arizona’s request to allow it to deny driver’s licenses to young undocumented immigrants who have been permitted by Obama administration policy to remain in the United States. The Court refused to stay a ruling by the U.S. Court of Appeals for the Ninth Circuit requiring the state to issue driver’s licenses to recipients of Deferred Action for Childhood Arrivals. There were no explanations by either the majority or the dissenters. Arizona is still pursuing its appeal to the Court.
President Obama today announced a nw relationship between thr United States and Cuba, which have not had diplomatic relations in more than 50 years. The announcement has brought very different reactions in Havana and Miami.
The White House Blog lists "five takeaways from today's announcement:
1. The U.S. will re-establish diplomatic relations with Cuba that have been severed since January of 1961. Going forward, the U.S. will re-establish an Embassy in Havana, and high-ranking officials will visit Cuba. We will work together to advance our interests on issues including health, migration, counter-terrorism, drug trafficking, and disaster response.
2. The U.S. will review Cuba's designation as a State Sponsor of Terrorism. This review, conducted by the State Department, will be guided by the facts and the law. At a time when we are focused on threats from al Qaeda to ISIL, a nation that meets our conditions and renounces the use of terrorism should not face this sanction.
3. The U.S. will take steps to increase travel, commerce, and the flow of information to and from Cuba. This is fundamentally about freedom and openness, and also expresses my belief in the power of people-to-people engagement. With the changes I’m announcing today, it will be easier for Americans to travel to Cuba, and Americans will be able to use American credit and debit cards on the island. Nobody represents America’s values better than the American people, and I believe this contact will ultimately do more to empower the Cuban people.
4. The return of Alan Gross and other Americans detained in Cuba cleared the way for this progress in relations. While the President has been prepared to take additional steps for some time, a major obstacle stood in the way: the wrongful imprisonment, in Cuba, of U.S. citizen and USAID sub-contractor Alan Gross for five years. Over many months, the Administration has held discussions with the Cuban government about Alan’s case, and other aspects of our relationship. Today, Alan returned home and was reunited with his family at long last. President Obama also secured the release of one of the most important intelligence agents that the U.S. has ever had in Cuba. Imprisoned for nearly two decades, he is now home on U.S. soil. Cuba also released a substantial number of prisoners whose cases were directly raised with the Cuban government by the President's team.
5. Pope Francis helped facilitate the release of Alan Gross and thawing of relations between the U.S. and Cuba.
From 1915 onward, six million black Southerners quit that region for points north in an epic tide of souls fleeing oppression and seeking opportunity. This spring, the NYC Museum of Modern Art will honor the Great Migration’s centennial by reuniting Jacob Lawrence’s famous paintings of this mass movement, a suite of 60 panels to be shown at MoMA for the first time since 1994.
The case was brought on behalf of mothers and children who have fled extreme violence, death threats, rape, and persecution in Central America and come to the United States for safety. Each has been found by an immigration officer or judge to have a "credible fear" of persecution, meaning there is a "significant possibility" they will be granted asylum.
Yet, instead of releasing these families as they await their asylum hearings, which the Department of Homeland Security (DHS) has typically done, the agency now categorically detains and denies their release on bond or other conditions. The Obama administration adopted this policy — "an aggressive deterrence strategy" — following this summer's increase in mothers and children coming to the United States.
The Obama administration's blanket no-release policy is a violation of federal immigration law and regulations, as well as the Fifth Amendment of the U.S. Constitution, which prohibit the blanket detention of asylum seekers for purposes of general deterrence, the complaint charges.
The lawsuit aims to invalidate that policy and ensure that the families’ cases receive individualized reviews. Asylum-seeking mothers and children are being detained at facilities across the country, in places such as Karnes, Texas, and Berks County, Penn. The nation's largest family detention facility just opened in Dilley, Texas.
Immigration Article of the Day: Unaccompanied Migrant Children from Central America: Context, Causes, and Responses by Dennis Stinchcomb and Eric Hershberg
Unaccompanied Migrant Children from Central America: Context, Causes, and Responses by Dennis Stinchcomb American University - Center for Latin American & Latino Studies (CLALS) and Eric Hershberg, American University - Center for Latin American & Latino Studies (CLALS) November 2014 CLALS Working Paper Series No. 7
Abstract: This paper offers a comprehensive orientation to the recent surge in migration to the United States by unaccompanied children and families from the Northern Triangle countries of Central America: El Salvador, Guatemala, and Honduras. To inform advocates and others working on behalf of these new arrivals, this report seeks to: 1) Set the unprecedented expansion in the number of youth and family border crossings in the context of long-term migration trends from the region; 2) Present a detailed account of the country conditions (“push factors”) driving the exodus of Central American minors and families; and 3) Consider new arrivals’ prospects for remaining in the U.S. in light of available forms of deportation relief as well as current policy and advocacy responses.
Tuesday, December 16, 2014
Judge Arthur Schwab of the U.S. District Court in the Western District of Pennsylvania held that the president’s policy goes “beyond prosecutorial discretion” in that it provides a relatively rigid framework for considering applications for deferred action, thus obviating any meaningful case-by-case determination as prosecutorial discretion requires, and provides "substantive rights" to applicable individuals. Finding that the executive action amounts to legislation, Judge Schwab concluded that the executive action violated separation of powers and the Take Care Clause of the Constitution (Article II, Sec. 3) (providing that the President must "take Care that the Laws be faithfully executed").
One might reasonably asky how the issue get to the court so fast. The issue arose in the case of Elionardo Juarez-Escobar, who had previously been deported, reentered the country, been arrested for suspicion oif driving under the influence, turned over to the Department of Homeland Security, and charged with -- and pleaded guilty to -- illegal re-entry into the country. His sentencing was pending when President Obama announced the executive action on immigration on November 20.
Judge Schwab used the illegal re-entry case as a launching pad for a broadside attack on President Obama's immigration actions, in particular the deferred action program and the removal priorities.
While it seems clear that Juarez-Escobar would not be eligible for relief, Judge Schwab in a somewhat meandering opinion stretches to find a possible claim in an apparent attempt to place in doubt many of the Obama administration's actions. Judge Scwhab also attacks "sanctuary cities," suggesting that the defendant may have a claim of arbitrary treatment because he would not have been turned over to the DHS by local police in some jurisdictions.
The Court asked for additional briefing and notice about what the defendant may seek to do (including possibly withdrawing his guilty plea) by January 6, 2015. We can expect this case to be in the news in the coming year.
This is the first judicial opinion to address Obama’s decision to expand deferred action for some individuals unlawfully present in the United States.
UPDATED Dec. 17.
A well-known entertainer has ran into some immigration difficulties in Canada. Actor Randy Quaid and his wife have sued the State Department, demanding their passports back and claiming they are stranded in Canada without them. Quaid claims that the State Department revoked his and his wife's passports on Dec. 12, 2013. Quaid was in Canada to accept an award. Quaid alleges that he and his wife are "in a foreign country" and "unable to identify themselves as American citizens."
Politico reports that The Senate confirmed a top Obama administration immigration official on Tuesday with near-unanimous Republican opposition. The vote to install Sarah Saldana, currently the U.S. attorney for the Northern District of Texas, as the head of Immigration and Customs Enforcement was 55-39.
John Morton was the former ICE director from 2009-13.
According to news reports, Saldaña, the state's first Hispanic U.S. attorney, will become the first Latina to run ICE, the agency that enforces the nation's immigration laws.
Julia Preston reports that Jeh C. Johnson, the secretary of Homeland Security, visited Dilley, Texas on Monday to open the country’s largest immigration detention facility. The Obama administration sought to bolster the southwest border to prevent undocumented immigration. "The 50-acre center in Dilley, 85 miles northeast of Laredo, will hold up to 2,400 migrants who have illegally crossed the border and is especially designed to hold women and their children." I cannot resist -- That's a Dilley!
While the administration touts detention as a deterrence to undocumented migration, the International Detention Coalition has summarized the reasearch as follows:
"1. Detention does not deter irregular migrants The research found that detention is not an effective deterrent of asylum seekers and irregular migrants in either destination or transit contexts. Detention fails to impact on the choice of destination country and does not reduce numbers of irregular arrivals. Studies have shown asylum seekers and irregular migrants either are:
◾ Not aware of detention policy or its impact in the country of destination
◾ May see it as an inevitable part of the journey, and
◾ Do not convey the deterrence message to other back to those in country of origin."
A Dilley playground / Photo Jennifer Whitney for the NYT
The family detention facility in Dilley, Texas has officially opened. Jeh Johnson, Secretary of Homeland Security, was present for its inauguration.
As the New York Times reports, Secretary Johnson made this cheerful pronouncement at the event: "It will now be more likely that you will be detained and sent back."
Secretary Johnson's comment flies in the face of the fact that many of the families fleeing to the United States have valid claims of asylum.
As Stephen Manning reported in early December, AILA pro bono volunteers have been successful in 11 of the 11 asylum hearings held at the Artesia detention facility. There is no reason to suspect that the women and children to be held at Dilley will have less meritorious claims.
Abstract: Persons with more than one nationality (“multiple nationals”) who flee persecution in their home country may have compelling reasons to seek asylum elsewhere rather than go to a second country of nationality where they have no ties or face serious hardships. The 1951 U.N. Convention Relating to the Status of Refugees, however, expressly makes them ineligible for refugee status unless they have a well-founded fear of being persecuted in all their countries of nationality. The U.S. Refugee Act omits this exclusionary language but nonetheless has been read by immigration agencies as if it incorporated the Convention’s approach. This Article challenges the view that multiple nationals should not be considered refugees. It argues that asylum should be denied only when it would be reasonable, under all the circumstances, to expect the person to resettle in a second country of nationality after taking into account factors such as family ties, social and cultural constraints, and any hardships the person would face.
The Refugee Act’s text and historical context establish that Congress intended to allow multiple nationals to qualify as refugees if they face persecution in any one of their countries of nationality. Drawing on archival research as well as a close examination of legislative and administrative history, this Article shows that the Refugee Act’s drafters meant to preserve a longstanding U.S. policy of accepting refugees with more than one nationality as long as they had not “firmly resettled” in another country of nationality before coming the U.S. — a policy especially salient to the Act’s proponents because it allowed for the continued admission of Soviet Jews as refugees even though Israel welcomed them as citizens.
This Article also argues that other refugee-receiving countries should reconsider their stance toward multiple national asylum-seekers. The Convention’s approach to multiple nationality has become increasingly anomalous in light of the wide international acceptance of the principle that persons who could avoid persecution by going elsewhere — by relocating to a different part of their home country, or seeking asylum in some third country — should not be denied refugee status unless it is reasonable, under all the circumstances to expect them to do so. The Article concludes by discussing how the UNHCR and European Union are well-positioned to play a leading role in developing a new norm for the treatment of multiple nationals who seek refuge from persecution.
Monday, December 15, 2014
There will be migrant children held in detention facilities this holiday season. You can help to bring them a little cheer through Lutheran Immigration And Refugee Service's Hope For The Holidays Program.
In partnership with ICE officials and Good News Lutheran Church in San Antonio, the program aims to give a gift to each child in the Karnes County family detention center.
On my last morning in Artesia, I took photos of the FLETC facility.
FLETC security, it turns out, does not like photographers. After snapping the above pic, I was told that I could not take photos directed into the facility. When I pointed out that I was on public property (the street), the security guard informed me that, to the contrary, I was on a "federal easement" and had to cross the street. Rather than argue about property (which I did not think would go well), I agreed. And started walking through this scub to continue to take photos.
Below is the "lawyer's gate" where volunteers entered and parked.
Remaining on the opposite side of the street did not prevent yet another guard from hollering to me to stop photographing the facility. After I explained that I had permission (sort of) to photograph from "my" side of the street, he left me alone. After that, FLETC security trucks merely followed me as I continued my photo essay around the facility.
It is the end of the year and a "top 10" list of major immigration events seems in order. Here is the ImmigrationProf list:
1. President Obama's Executive Actions on Immigration. It seems fair to say that this much-anticipated set of initiatives generated nothing less than a firestorm of controversy.
2. A "Surge" of Migrants from Central America: For a short while, the nation was preoccupied with a much-publicized "surge" of migrants from Central America, including many unaccompanied minors and women. The Obama administration responded with detention and expedited proceedings. Many lawyers provided assistance to the migrants. Ultimately, the numbers fell and the new migrants receded from the headlines.
3. Southern California Town Protests Detention of Central American Migrants in "Own Backyard": The city of Murrieta, California made the national news when its leaders and citizens publicly protested the arrival of buses with Central American immigrants, including many women and children, to be datained in town. It seems far to say that the term "tolerance" was not often associated with the vocal protesters.
4. California Supreme Court admits Sergio Garcia, an undocumented immigrant, to the California Bar. The ruling came in January and Florida later admitted a Deferred Action for Childhood Arrivals recpient to the bar.
7. New Racial Profiling Guidelines Permit Profiling in Immigration Enforcement and National Security Matters: The new Department of Justice racial profiling guidelines restrict racial profiling in ordinary law enforcement but allow it to continue unimpeded in immigration enforcement and national security matters.
8. Mexican Immigrant Appointed to California Supreme Court: Law professor Tino Cuellar, who was born in Mexico, was nominated and confirmed as a Justice on the California Supreme Court.
9. Justin Bieber Deportation Movement: Bad boy singer (and Canadian immigrant) Justin Bieber had a number of run-ins with the law, which led to a "Deport Justin Bieber movement" that culminated in a petition to President Obama.
10. Senate Releases Torture Report: The Senate released a lengthy report documented the use of "enhanced interrogation techniques" in the war on terror after September 11, 2001. It led to a great deal of controversy and debate. The victims were Arab and Muslims suspected of terrorist affiliations.
1. California's Propostion 187, Immigration Icon, Celebrates 20 years:In 1994, California voters passed Proposition 187 by a large margin. A precursor to many of the more recent state and local immigration enforcement laws, Prop 187 would have prohibited undocumented students from the public schools, required greater local police involvemenmt in immigration enforcement, etc.
2. Immigration Judge Sues DOJ: Immigration Court Judge A. Ashley Tabaddor, a former Assistant U.S. Attorney and current adjunct professor at UCLA School of Law., sued the U.S. Department of Justice for ordering her to recuse recusing herself, an immigrant from Iran, indefinitely from all cases involving Iranian nationals. The dispute apparently all started after Trabaddor sought a day of of leave to attend a meeting of Iranian American leaders at the White House.
From the Bookshelves: A Conservative and Compassionate Approach to Immigration Reform: Perspectives from a Former US Attorney General by Alberto R. Gonzales and David N. Strange
Although the United States is a nation founded by immigrants, Alberto Gonzales and David Strange believe that national immigration policy and enforcement over the past thirty years has been inadequate. This failure by federal leaders has resulted in a widespread introduction of state immigration laws across the country. Gonzales and Strange assert that the solution to current immigration challenges is reform of federal immigration laws, including common sense border control, tougher workplace enforcement, changes to the Immigration and Nationality Act, and a revised visa process.
Gonzales and Strange embrace many provisions of current pending legislation, but are sharply critical of others. Their proposals call for an expansion of the grounds of inadmissibility to foster greater respect of law and to address the problem of visa overstays, while also calling for a restriction on grounds of inadmissibility in other areas to address the large undocumented population and increasing humanitarian crisis. They explore nationality versus citizenship and introduce a pathway to nationality as an alternative to a pathway to citizenship.
This immigration policy blueprint examines the political landscape in Washington and makes the argument that progress will require compromise and the discipline to act with compassion and respect.
Immigration Article of the Day: Non-Citizen Nationals: Neither Aliens Nor Citizens by Rose Cuison Villazor
Non-Citizen Nationals: Neither Aliens Nor Citizens by Rose Cuison Villazor, University of California, Davis December 5, 2014
Abstract: The modern conception of the law of birthright citizenship operates along the citizen/noncitizen binary. Those born in the United States generally acquire automatic U.S. citizenship at birth. Those who do not are regarded as non-citizens. Unbeknownst to many, there is another form of birthright membership category: the non-citizen national. Judicially constructed in the 1900s and codified by Congress in 1940, non-citizen national was the status given to people who were born in U.S. territories acquired at the end of the Spanish-American War in 1898. Today, it is the status of people who are born in American Samoa, a current U.S. territory. This Article explores the legal construction of non-citizen national status and its implications for our understanding of citizenship. On a narrow level, the Article recovers a forgotten part of U.S. racial history, revealing an interstitial form of birthright citizenship that emerged out of imperialism and racial restrictions to citizenship. On a broader scale, this Article calls into question the plenary authority of Congress over the territories and power to determine their people’s membership status. Specifically, this Article contends that such plenary power over the citizenship status of those born in a U.S. possession conflicts with the common law principle of jus soli and the Fourteenth Amendment’s Citizenship Clause. Accordingly, this Article offers a limiting principle to congressional power over birthright citizenship.
Sunday, December 14, 2014
Here is an out-of-the-ordinary story that should appealks to the gamers in the crowd.
Yesterday, Papers, Please made its debut on iPad, but the game was missing a key aspect: all nudity had been removed after Apple considered it to be pornographic. According to the game's developer, it turns out it was a mistake and not censorship.
Papers, Please puts you in the role of an immigration officer, and the offending bits involved scanning potential immigrants with an x-ray, which allowed you to see them in the nude. That feature was present in the original PC version from last year, but when Pope submitted the game to Apple it was rejected for containing "pornographic content." A revised version, featuring characters in their underwear instead, was released today.
The game is described below:
"A Dystopian Document Thriller.
The communist state of Arstotzka has ended a 6-year war with neighboring Kolechia and reclaimed its rightful half of the border town, Grestin.
Your job as immigration inspector is to control the flow of people entering the Arstotzkan side of Grestin from Kolechia. Among the throngs of immigrants and visitors looking for work are hidden smugglers, spies, and terrorists. Using only the documents provided by travelers and the Ministry of Admission's primitive inspect, search, and fingerprint systems you must decide who can enter Arstotzka and who will be turned away or arrested."
Talking Points Memo reports that members of the Senate is fuming over objections by Senators Ted Cruz (R-TX) and Mike Lee (R-UT) that held up a $1.1 trillion omnibus bill meant to avoid a shutdown of teh federal government. The objection was fueled by the two conservatives' desire to fight President Barack Obama's executive action on immigration. The objections by Cruz and Lee mean that the Senate must slog through procedural votes Saturday on nominees and also vote to end a filibuster on the omnibus bill at 1 a.m. on Sunday.
Senator Cruz defended himself on Facebook:
"While the Senate considers the CRomnibus spending bill, all we've done was simply request to hold a vote on a measure to stop President Obama's amnesty. Instead, Majority Leader Harry Reid is holding a series of votes today for the sheer purpose of blocking that vote on Obama's amnesty.
Harry Reid's last act as Majority Leader is to, once again, act as an enabler for President Obama, by blocking this vote on the President's amnesty. He is going to an embarrassing length to tie up the floor to obstruct debate and a vote on this issue because he knows amnesty is unpopular with the American people, and he doesn't want the Democrats on the record as supporting it.
No one wants a government shutdown. We are only seeking a vote. As soon as the Majority Leader allows a vote on a measure to stop President Obama's amnesty, we can and should move forward on this bill to fund the government. If he does not, then we will continue to insist upon regular order and use every tool at our disposal to ensure there is a vote."