ImmigrationProf Blog

ADIOS SHERIFF JOSE: Federal Court Rules Arizona Sheriff Joe Arpaio Violated United States Constitution: Court Says Arpaio and His Deputies Have Engaged in Racial Profiling Against Latinos in Maricopa County

Last summer, Sheriff Joe Arpaio of Maricopa County, Arizona stood trial for rampant violations of the civil rights of Latinos.  The District Court has issued its ruling and Sheriff Joe cannot be happy.  Here is the winning team's press release:

Federal Court Rules Arizona Sheriff Joe Arpaio Violated United States Constitution: Court Says Arpaio and His Deputies Have Engaged in Racial Profiling Against Latinos in Maricopa County

FOR IMMEDIATE RELEASE

CONTACT:

Isabel Alegria, ACLU national, (415) 343-0785, (646) 438-4146 (m) or media@aclu.org

Dan Pochoda, ACLU of Arizona, (602) 532-0486 (m) or dpochoda@acluaz.org

Alessandra Soler, ACLU of Arizona, (602) 301-3705 (m) or asoler@acluaz.org

Amelia Hansen, Covington & Burling, (415) 955-6831 or ashansen@cov.com

Larry Gonzalez, The Raben Group, (310) 956-2425 or lgonzalez@rabengroup.com  

PHOENIX – Maricopa County Sheriff Joe Arpaio relied on racial profiling and illegal detentions to target Latinos, a federal district court said today. The ruling comes following a three-week trial in July and August of last year, over a pattern of unlawful practices by Arpaio and the Maricopa County Sheriff’s Office (MCSO) during immigration sweeps and traffic stops.

“Arpaio’s proven willingness to seek political gain at the expense of public safety and constitutional guarantees has come at a great cost to Latinos in Maricopa County, who’ve been terrorized by MCSO personnel and forced to endure years of racial harassment and abuse,” said Dan Pochoda, Legal Director of the ACLU of Arizona. “The court found that racial profiling by the Maricopa County Sheriff’s Office, from top to bottom, was pervasive and widespread. Given the absence of monitoring or even recognition of serious problems by agency personnel, court-required, substantive changes will be necessary to eradicate these unconstitutional practices and restore public trust.”

The American Civil Liberties Union, the ACLU of Arizona, the Mexican American Legal Defense and Educational Fund (MALDEF), and the law firm Covington & Burling LLP represented a class of Latino residents and a Latino community organization, Somos America, in the lawsuit.

“This is an important victory that will resound far beyond Maricopa County,” said Cecillia Wang, director of the ACLU Immigrants’ Rights Project. “Singling people out for traffic stops and detentions simply because they’re Latino is illegal and just plain un-American. Let this be a warning to anyone who hides behind a badge to wage their own private campaign against Latinos or immigrants that there is no exception in the Constitution for violating people’s rights in immigration enforcement.”

Last September, a federal appeals court affirmed that Arpaio’s office cannot detain people solely on the suspicion that they are undocumented when it refused to reverse a lower-court’s ruling. Today, U.S. District Judge G. Murray Snow issued a decision in Ortega Melendres v. Arpaio that found the policies and practices of Arpaio and his office are discriminatory, violate the Fourth and Fourteenth Amendments, Title VI of the Civil Rights Act of 1964 and the Arizona Constitution.

“The evidence fully supports the finding of an equal protection clause violation,” said Stan Young, a partner with Covington & Burling. “We proved a discriminatory intent, through the sheriff’s own internal correspondence and public statements, as well as admissions that the MCSO uses Hispanic ethnicity as a reason to pursue immigration inquiries. We also proved a harmful effect, in the form of higher stop rates and longer stop times for Hispanics. Even apart from racial discrimination, we also proved that the MCSO improperly detains motorists and passengers without having an adequate basis. All of these violations will now need to stop.”

MCSO's rampant racial profiling had created a culture of fear in Maricopa County. Latinos and others who look or sound “foreign” have worried that a trip to the grocery store or to work will end with interrogation by armed officers or incarceration at the county jail.

“The voices of Sheriff Arpaio's racial profiling targets have been heard,” said Nancy Ramirez, Western Regional Counsel, MALDEF. “Today's decision vindicates Maricopa County community members who have long suffered from the Sheriff's discriminatory and illegal practices. We look forward to seeing much needed reforms implemented at the MCSO.”

Today’s decision is a major step in putting an end to the culture of fear that was created under Sheriff Arpaio’s leadership of MCSO. With this victory, plaintiffs’ attorneys will make a detailed submission to the district court, outlining steps that should be taken to put an end to the MCSO’s illegal practices.

For more information on the case: www.aclu.org/immigrants-rights-racial-justice/ortega-melendres-et-al-v-arpaio-et-al

KJ

Adios El Paso, Texas!

Today was the last day of the Hofstra Law School program that examines the enforcement of immigration law at the border. Day 5 (Thursday, May 23) of the course focused on exploring the legal issues related to the exclusion and detention of non-citizens. Day 6 (Friday, May 24) involved dialogues with lawyers and supervisors of Border Patrol agents. I will blog about both days soon. For now, goodbye, El Paso. See you next summer!

RCV

AALS Workshop on Poverty, Immigration and Property, June 10-12 in San Diego

The AALS Workshop on Poverty, Immigration and Property will be held June 10-12 in San Diego. The workshop brings together three communities of scholars: poverty, immigration and property to address historical issues and recent developments in the intersection of these topics. The topics covered in this innovative workshop include plenary sessions on What Lies at the Intersection of Poverty, Property, and Immigration; After SB 1070: Exclusion, Inclusion, and Immigrants; Reconsidering State v. Shack; and Transnational Perspectives on Poverty, Immigration, and Property.

 A range of concurrent panels will be established based on proposed topics and a call for papers and presentations. If you’re interested in attending, check out the agenda and register online.

Bill Hing, Rose Villazor, and Kevin Johnson of ImmigrationProf blog will be there.

KJ

From the Bookshelves: According to Our Hearts Rhinelander v. Rhinelander and the Law of the Multiracial Family by Angela Onwuachi-Willig

According to Our Hearts Rhinelander v. Rhinelander and the Law of the Multiracial Family by Angela Onwuachi-Willig REVIEWS PREVIEW CONTENTS EXCERPTS This landmark book looks at what it means to be a multiracial couple in the United States today. According to Our Hearts begins with a look back at a 1925 case in which a two-month marriage ends with a man suing his wife for misrepresentation of her race, and shows how our society has yet to come to terms with interracial marriage. Angela Onwuachi-Willig examines the issue by drawing from a variety of sources, including her own experiences. She argues that housing law, family law, and employment law fail, in important ways, to protect multiracial couples. In a society in which marriage is used to give, withhold, and take away status—in the workplace and elsewhere—she says interracial couples are at a disadvantage, which is only exacerbated by current law.

 

Angela Onwuachi-Willig is the Charles M. and Marion J. Kierscht Professor of Law at the University of Iowa. Her articles have appeared in many prestigious law journals and she has been a nominee for the Iowa Supreme Court. She lives in Grinnell, IA.

KJ

NYC Bar Association Supports Immigration Equality for Same-Sex Permanent Partners

In a letter to the U.S. Senate Judiciary Committee, dated May 15th, the New York City Bar Association, through four of its Committees, urges the Senate to provide equality in immigration reform for same-sex spouses and permanent partners. Although the Senate Judiciary Committee declined to do so in the bill it forwarded, the City Bar reiterates its longstanding support, in any House or Senate immigration reform legislation, for family reunification that equally recognizes same-sex spouses and permanent partners.

The May 15th letter specifically urges the adoption of Senator Patrick Leahy’s Amendments 6 and 7 to the “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744). These Amendments echo the “Uniting American Families Act” (H.R. 519), which New York Representative Jerrold Nadler introduced in the House with 130 co-sponsors in 2012.

Lenni Benson, Chair of the City Bar’s Immigration and Nationality Law Committee, said, “Today, because immigration laws do not recognize committed same-sex spouses nor permanent partnerships, thousands of American families are cruelly kept apart. We ask that federal immigration law respect our New York state law and the laws of other states that recognize same sex marriage.”

The City Bar supports the Leahy Amendments for reasons of both equality and economics. “We urge the adoption of Sen. Leahy’s Amendments 6 and 7, and the passage of S. 744 generally, to provide long-overdue recognition of the diversity of families and the fundamental rights of individuals in committed marriages and permanent partnerships,” states the letter. “Moreover, these amendments have economic benefit, in encouraging all U.S. citizens and residents to live and work in America….In our global economy, we should not disadvantage U.S. residents and their partners from seeking opportunities, abroad or at home.”

In addition to supporting immigration equality for same-sex partnerships, the City Bar supports appointed counsel and reduced detention in any comprehensive immigration reform. The May 15th letter was signed by the Chairs of the City Bar Committees on Immigration and Nationality Law, Sex and the Law, LGBT Rights, and Civil Rights. The May 15th letter can be read here. The Leahy Amendments to S. 744 can be read at the following links: Amendment 6; Amendment 7.

KJ

CrImmigration provisions of Senate comprehensive immigration bill

Professor César Cuauhtémoc García Hernández on the crImmigration blog summarizes the various immigration provisions of the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.  Professor Jennifer Chacón critically analyzes the U.S./Mexico border security provisions of the Senate Bill.

KJ

House Speaker: Senate Immigration Bill Off the Table

 

The Washington Times reports that House Speaker John A. Boehner on Thursday flatly ruled out chances of the House passing the Senate’s immigration bill, saying his chamber will debate its own bill instead. The Ohio Republican and his other House GOP leaders issued a joint statement that seemed designed to slow the momentum behind the Senate bill, which emerged from the Senate Judiciary Committee on a bipartisan 13-5 vote this week.

The statement was issued by House Speaker John Boehner (R-OH), Majority Leader Eric Cantor (R-VA), Majority Whip Kevin McCarthy (R-CA), Republican Conference Chairman Cathy McMorris Rodgers (R-WA), and Judiciary Committee Chairman Bob Goodlatte (R-VA):

“Our nation’s immigration system is broken – hurting families, our national security, and the economy, which is why reform is included in our plan for economic growth and job creation. While we applaud the progress made by our Senate colleagues, there are numerous ways in which the House will approach the issue differently. The House remains committed to fixing our broken immigration system, but we will not simply take up and accept the bill that is emerging in the Senate if it passes. Rather, through regular order, the House will work its will and produce its own legislation. Enacting policy as consequential and complex as immigration reform demands that both chambers of Congress engage in a robust debate and amendment process. Our nation’s immigration processes, border security, and enforcement mechanisms remain dysfunctional. The House goal is enactment of legislation that actually solves these problems and restores faith in our immigration system, and we are committed to continuing the work we’ve begun toward that goal in the weeks and months ahead.”

Note:  Doesn't the above picture of the Speaker with his colleagues suggest that the GOP's efforts at minority outreach have gone for naught? Just something that struck me as I scanned the "smiling" faces.

KJ

Immigration Article of the Day: Defining American: DREAMers, Immigration Reform and Citizenship by Elizabeth Keyes

Defining American: DREAMers, Immigration Reform and Citizenship by Elizabeth Keyes University of Baltimore - School of Law April 18, 2013 Nevada Law Journal, Forthcoming

Abstract: The grassroots movement propelling the DREAM Act and immigration reform forward reveals how the definition of citizenship is undergoing a dramatic transformation, in ways both inspiring and troubling. The DREAM movement depends upon the compelling but exceptional stories of passionate, high-achieving, law-abiding youth who already define themselves as being American, and worthy of legal status. Situating this narrative in the rich literature of citizenship, the article shows how the DREAM movement effectively exposes the disjuncture between the DREAMers' identity as Americans and their lack of legal immigration status. The article celebrates how this narrative succeeds as a contrast to the prevailing political discourse and how the movement, led by youth from all corners of the globe, radically upends America’s history of deeming people of color unworthy of (and ineligible for) citizenship. The article also presents some unintended consequences of the movement, however, suggesting that the worthiness-based narrative strategy adopted by the DREAMers is both produced by and contributing to ever-narrowing standards for who is deemed worthy of inclusion. These narrowing standards may have negative consequences for the expansiveness of immigration reform more broadly, and even for citizenship beyond the field of immigration. This article explores how the worthiness narrative, which implicitly acknowledges a concept of unworthiness, inadvertently connects to attempts to restrict notions of citizenship, specifically by limiting the principle of jus soli citizenship, extending felon disenfranchisement and instituting voter identification laws.

KJ

Principles of Fairness Left Out in Senate Judiciary Mark-Up

From the Immigrant Legal Resource Center:

PRINCIPLES FOR IMMIGRATION REFORM THAT PROMOTE FAIRNESS FOR ALL IMMIGRANTS

Many of us have fought for years for fundamental fairness for all immigrants. We have sought to roll back harsh mass deportation programs that tear apart families and to ensure that our immigration laws align with our values of justice. As we build towards an overhaul of our federal immigration system, we must take this opportunity to address some of its most egregious aspects and simultaneously resist new harmful provisions that we would have to fight for decades to come. The Senate Judiciary Committee failed to address these important matters.

✓ Ending Disproportionate Double Punishment for Past Convictions
Since 1996, certain criminal convictions, including some minor misdemeanors from many years ago, automatically trigger deportation for life regardless of individual circumstances. Immigrants suffer a disproportionately harsh double punishment because they have already served their criminal sentence prior to deportation proceedings. Some immigrants even face deportation for conduct that was not deportable at the time it was committed or is not considered a “conviction” under state law.

✓ Restoring a Fair Day In Court
Immigrants should not be treated only as the sum of their mistakes in a nation that values second chances. Immigration Judges must be given back the power to grant a second chance and cancel someone’s deportation after looking at other aspects of a person’s life—such as family ties, length of time in the U.S., rehabilitation, and acceptance of personal accountability. Criminal court judges should also be given back the power they once had to recommend against deportation.

✓ Terminating Mass Deportation Programs, like the Criminal Alien Program, Secure Communities, and 287(g)
The entanglement of these deportation programs with the criminal justice system threatens the rights of U.S. citizens and immigrants alike, encouraging racial profiling and resulting in long periods of detention. This undermines community safety by eroding trust between immigrant communities and local law enforcement. Immigrants hoping to reunite with their families by coming or returning to the U.S. without authorization now also face excessive criminal punishments, compounding the racial and economic injustices of the criminal justice system. Immigration legislation must rein in the constant funneling of immigrants into the deportation system and the unequal treatment of immigrants in the criminal justice system.

✓ Ending Fast-Track Deportations
Current immigration laws allow the government to deport many without letting them see an Immigration Judge. Most also do not have lawyers to help them. For these people, low-level government agents simply decide to order their removal. No one should be banished from the U.S. and torn from their family and community without their day in court.

✓ Ending Mandatory Detention
Laws that require jailing thousands of immigrants while they fight their deportation cases are inhumane. Even in the criminal justice system, people facing charges can at least request bail. Many immigrants are transferred to for-profit detention centers thousands of miles from their homes, do not have access to lawyers, and are pressured to accept deportation to escape the deplorable conditions.

Watch Out!
Immigration reform legislation is a minefield, full of potential deportation traps for those currently in lawful status and those trying to obtain it.

Fight Back Against:
• Automatic unwaivable bars to getting lawful status
• New deportation grounds
• Increased immigrant detention
• Expansion of mass deportation programs
• Heightened militarization of the border
• Greater immigration and criminal penalties for border-crossers and other immigration-related violations

Immigrant Legal Resource Center | www.ilrc.org
Washington Defender Association | www.defensenet.org
Immigrant Defense Project | www.immigrantdefenseproject.org
National Immigration Project | www.nationalimmigrationproject.org

bh

Indian Immigrant Appointed to D.C. Circuit

From the Asian American Justice Center:

NAPABA AND AAJC APPLAUD CONFIRMATION OF SRI SRINIVASAN
 
Srinivasan Becomes First South Asian American Federal Appellate Court Judge In Nation's History
WASHINGTON---Today, the U.S. Senate voted 97 to 0 to confirm Srikanth ("Sri") Srinivasan as a judge on the U.S. Court of Appeals for the District of Columbia Circuit.  Mr. Srinivasan is both the first South Asian American federal appellate court judge in the history of the United States and the first Asian Pacific American to serve on the D.C. Circuit. 
 
"We are deeply gratified that the Senate has confirmed Mr. Srinivasan today," said Wendy C. Shiba, president of the National Asian Pacific American Bar Association (NAPABA).  "Given that over 3.5 million South Asian Americans live in the United States, it is particularly noteworthy that Mr. Srinivasan has made history by becoming the first-ever South Asian American federal appellate court judge.  Moreover, the D.C. Circuit long has been recognized as one of the most important courts in the country.  The presence of an Asian Pacific American on that court gives testament to the strides made by the Asian Pacific American community in recent years.  It is a fitting and momentous way to conclude and celebrate Asian Pacific American Heritage Month." 
 
Mr. Srinivasan is an attorney of exceptional accomplishment and merit who has received highest praise from all segments of the legal community.  Numerous federal judges (including Justice Sandra Day O'Connor), former government officials, and professors have lauded Mr. Srinivasan's legal skills, intellect, and integrity.  These individuals include officials and judges appointed by the Reagan, George H.W. Bush, Clinton, George W. Bush, and Obama Administrations.  They invariably have described Srinivasan as "a tremendous lawyer," "one of the very smartest, most talented," and "especially gifted."  They all have concluded that Srinivasan will be an "excellent" or "tremendous" appellate court judge.  Until his confirmation, he served as the Principal Deputy Solicitor General of the United States, where he regularly appeared before the U.S. Supreme Court.  He previously served as a partner and Chair of the Supreme Court and appellate practice for the law firm of O'Melveny & Myers LLP.
 
"Sri Srinivasan is an exceptional attorney with a long history of work in civil rights," said Mee Moua, president and executive director of the Asian American Justice Center (AAJC), member of the Asian American Center for Advancing Justice. "In private practice he handled some of the most important Supreme Court cases pro bono for AAJC and for the greater civil rights community. We congratulate him on his historic confirmation and look forward to his tenure on the D.C. Circuit."
 
Mr. Srinivasan is Indian by birth, Kansan at heart, and all American in story.  He was born in Chandigarh, India, and immigrated to the United States as a child with his parents and two younger sisters.  Mr. Srinivasan grew up in Lawrence, Kansas, where his father was a professor of mathematics at the University of Kansas, and his mother taught at the Kansas City Art Institute.  Throughout his upbringing, Mr. Srinivasan attended public schools in Kansas.  In high school, he was very active in sports and music, including playing on the high school varsity basketball team.  He became, and to this day remains, a die-hard University of Kansas basketball fan. 
 
With Mr. Srinivasan's confirmation, three Asian Pacific Americans will sit as federal appellate court judges out of approximately 175 nationwide. All three have been nominated and confirmed in the last four years. One additional Asian Pacific American federal appellate court nominee remains pending before the U.S. Senate at this time - Raymond Chen, who has been nominated to the U.S. Court of Appeals for the Federal Circuit.
 
NAPABA and AAJC are proud to have supported Mr. Srinivasan. We thank President Obama for nominating Mr. Srinivasan, and commend the U.S. Senate for the noteworthy bipartisan support that he received during the confirmation process.
 
bh

Related articles

Senate Judiciary Approves Sri Srinivasan for D.C. Circuit

Disappointment with Senate's Failure to Protect Due Process

From Anoop Prasad of the Asian Law Caucus

Disappointingly, the Senate Judiciary Committee voted this week to further strip permanent residents with convictions of due process.  In 1996, Congress passed harsh laws stripping long term permanent residents of the right to a day in court before they were deported due to a criminal conviction.  Prior to the law, they would have a chance for a judge to balance the conviction against evidence of rehabilitation, close family ties including minor children, and other positive factors.  While Congress calls these crimes “aggravated felonies”, it includes misdemeanors and minor offenses for which the person served no time in jail. 

Earlier this week, the committee voted to make multiple driving under the influence convictions an aggravated felony.  Over the past decade and half, communities have felt the harsh consequences with record numbers of families torn apart.  In voting to preserve an immigrant’s right to day in court, Senator Patrick Leahy of Vermont stated that he was “for enforcement but also for judicial discretion.” 

Kamel Mouath* is one immigrant who would have been torn apart from his U.S. citizen spouse and young daughter without a hearing under the Senate’s bill.  Kamel was repeatedly arrested, beaten, and sexually assaulted by police in his home country.  He developed depression and Post-Traumatic Stress Disorder leading him to self medicate with alcohol.  He was convicted several times of driving under the influence.  Eventually, he was able to get treatment and became sober.  Under the Senate’s proposal a judge could not consider his family, rehabilitation, or mental health.

“Immigration reform that fails to address the hundreds of thousands of families torn apart by detention and deportation each year is not comprehensive.” said Alison Pennington, Staff Attorney for Immigrant Rights at the Asian Law Caucus.  The committee’s vote violates core American values of fairness and justice.  We call on Congress to fix our broken immigration system and restore a day in court for all immigrants.

*Name and identifying details have been changed to protect confidentiality.

bh

Decisions on ICE Detainees: State-by-State Details

What happened to the roughly 1,500 individuals taken into custody by Immigration and Customs Enforcement (ICE) in a typical work day? According to the latest ICE data compiled by TRAC, two out of three — around 1,000 — were "removed", meaning they were deported and barred from returning to the U.S. for years. Other individuals were released after posting bond, or on their own personal recognizance or for other reasons. This happened to approximately one in four detainees — roughly 360. Only about 20 of those released were placed under ICE's electronic monitoring or enhanced supervision in lieu of detention (ATD). Many of these decisions on detainees were made by ICE officials. A smaller number were made by a judge after a court proceeding. Whatever the source, the ultimate outcome — removal or release — varied in surprising ways from one state to the next.

KJ

More Than 100 Top Conservative Economists Send Letter Supporting Immigration Reform

More than 100 influential conservative economists released an open letter to Congressional leadership today supporting immigration reform and touting its economic and budgetary benefits for America. The letter, led by American Action Forum President Douglas Holtz-Eakin, includes a who's who of conservative luminaries: Nobel Laureate in Economics Edward Prescott, Art Laffer, Glenn Hubbard, Ed Lazear, Larry Lindsey, June O’Neill, George Schultz and more. The letter, signed by 111 economists, expresses support for broad-based immigration reform including a visa system that reflects America's economic policy objectives.

The signees look forward to a reformed and efficient legal immigration system that moves toward promoting economic growth over other objectives. As the letter states, the signees "believe a reformed and efficient immigration system can promote economic growth and ease the challenge of reforming unsustainable federal health and retirement programs."

The letter was sent to Speaker John Boehner, Senate Majority Leader Harry Reid, House Minority Leader Nancy Pelosi and Senate Minority Leader Mitch McConnell.

KJ

Day 4 in El Paso: At the Intersection of Immigration Law, Criminal Law and Human Rights

Observed federal judges sentence noncitizens for illegal re-entry (8 U.S.C 1326) cases. Listened to a federal prosecutor talk about how he exercises prosecutorial discretion. Heard a public defense attorney discuss how Padilla v. Kentucky affected his practice. Ate pizzas with residents of Annunciation House, a volunteer-based organization that provides accompaniment, hospitality and advocacy for migrants and then learned how to dance cumbia from them. Listened to an 18 year old noncitizen explain his story about crossing the border. These were just a few of the things that we did today as part of the program on border enforcement.

Crimmigration

The day began at 8 AM in the federal courthouse. We heard several cases involving noncitizens who were prosecuted for violating 8 U.S.C. 1326. One of the most compelling cases from the day involved a young mother who was tricked into driving an elderly woman across the border not knowing that the car she was driving had illegal drugs. The federal prosecutors confirmed that, through surveillance, they know that the defendant was deceived by people involved in trafficking drugs. Thus, when the defense attorney asked for time served, which the judge granted, the government did not object.  

Later in the classroom, we discussed the proceedings we observed in court and engaged in a discussion about the ways in which federal criminal law is used to essentially enforce immigration law. Specifically, we examined 8 U.S.C 1325 (illegal entry), 8 U.S.C. 1326 (illegal re-entry) and 8 U.S. 1324(a)(1)(A)(iv) [anti-harboring provision). Specifically, we discussed Operation Streamline and the "100 percent" prosecutorial approach taken by the federal government.  We also examined arguments against the policy, including those issued by the UC Berkeley School of Law's Warren Institute's report critiquing Operation Streamline.

Two guest speakers, a federal prosecutor and federal public defender, spoke to my class and provided more in-depth explanation of the contours and practice of illegal re-entry cases. The students appreciated learning about the specifics of each case and how to prove and defend illegal re-entry cases.  What struck me about the two speakers is how similar they are, even though they are typically on separate sides of the aisles. Both are Mexican American men who grew up in El Paso. Both miss the days of being able to travel back and forth between El Paso and Ciudad Juarez with greater ease than now. Notably, both are lawyers who seemed to have a strong sense of justice and want meaningful immigration reform. 

Human Rights

For me, the most memorable event for the day was the tour and fellowship dinner at Annunciation House. We arrived there a little after 5 PM and received a tour of the house. Volunteers at Annunciation House (who do not receive compensation) work and live in the house to provide fellowship and human rights advocacy for migrants who crossed the border. Many of the residents have potential asylum and CAT claims and are in need of pro bono assistance. (I will blog hopefully next week, after getting the blog entry approved, some of the stories that we heard).

We had dinner with the residents and mingled with them. Some of the students spoke Spanish and had lively conversations with the residents. Some of the residents and students communicated with each other in mixed English/Spanish. The best part of the night was when one of the residents set up an organ and another began singing. A bunch of us started dancing with the residents, a couple of whom taught us cumbia.  Other students went outside to play basketball with some of the residents.  Our night ended with smiles, handshakes and hugs. As our bus left Annunciation House at 8 PM, we waved goodbye to the residents.

This morning we saw people get sentenced for crossing the border illegaly. Tonight, we danced with people who did the same thing. What a stark difference from the way our day began. 

RCV

Prosecuting Migrants is Hurting Families Immigration Reform Should End Costly, Misguided Criminal Cases

The skyrocketing criminal prosecutions of migrants for illegally entering or reentering the United States carry huge human and financial costs, Human Rights Watch said in a report released today. Imprisoning migrants with minor or no criminal records before deporting them often affects people seeking to reunite with their families in the US or fleeing persecution, Human Rights Watch said. The 82-page report, “Turning Migrants Into Criminals: The Harmful Impact of US Border Prosecutions,” documents the negative impact of illegal entry and reentry prosecutions, which have increased 1,400 and 300 percent, respectively, over the past 10 years and now outnumber prosecutions for all other federal crimes. Over 80,000 people were convicted of these crimes in 2012, many in rapid-fire mass prosecutions that violate due process rights. Many are separated from their US families, and a large number end up in costly and overcrowded federal prisons, some for months or years.

KJ

Alina Das: 2013 LexisNexis® Matthew Bender® Daniel Levy Memorial Award Recipient!

Matthew Bender® is pleased to announce that the 2013 honoree for the Daniel Levy Memorial Award for Outstanding Achievement in Immigration Law is PROF. ALINA DAS.

Alina Das, Assistant Professor of Clinical Law at New York University School of Law, Co-Director of the Immigrant Rights Clinic, and Faculty Director of Bickel & Brewer Latino Institute for Human Rights, is a national leader on issues related to immigrants with criminal convictions. Professor Das has dedicated her career to protecting immigrants and immigrant communities from a detention-and-deportation regime that disproportionally affects people of color and overpoliced communities. Her independent work, her clinical teaching, and her groundbreaking scholarship focuses directly upon the intersection of criminal and immigration law and address the negative results of this intersection, including: (1) the ever-increasing numbers of both documented and undocumented immigrants targeted for deportation as a result of their contact with the criminal justice system; (2) the expanding detention of immigrants who are in removal proceedings; and (3) race-motivated enforcement and policing.

Professor Das has written a comprehensive and deeply important article on the origins and justifications of the categorical approach in immigration proceedings, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U.L. REV. 1669 (2011). This authoritative article, as well as the amicus curiae brief Professor Das drafted on behalf of 83 law professors, played an important role in the Supreme Court’s recent decision Moncrieffe v. Holder, 133 S. Ct. 1678; 185 L. Ed. 2d 727 (Apr. 23, 2013). In addition, her independent work and the work of the students she leads at the Immigrant Rights Clinic have had significant impact before the federal courts and the Board of Immigration Appeals. Immigration advocates nationwide turn to Professor Das as an expert on these issues.

Both in the Immigrant Rights Clinic and in her own separate work, Professor Das stresses the importance of building the power of affected communities. Professor Das serves as co-chair of the Board of Directors of Families for Freedom, a grassroots organization of immigrants affected by deportation policies.

As co-director of the Immigrant Rights Clinic, Professor Das works with students on projects that assist grassroots organizations on their advocacy campaigns. Last year, she and her students drafted a report on detention centers in New Jersey on behalf of a grassroots advocacy group. That report served as the basis for an ongoing campaign to improve conditions for detainees. Professor Das also works to address cutting-edge issues and continuously seeks new avenues through which to vindicate the rights of immigrants and communities of color. For example, Professor Das began a new project partnership this year with the ACLU of Georgia and partner organizations challenging racial profiling and the illegal search and seizure of Latino residents.

LexisNexis® Matthew Bender® and the members of the Editorial Board of Bender’s Immigration Bulletin commend Professor Das for her efforts that go “above and beyond.” Professor Das will be honored at a reception in New York in the fall.

The Daniel Levy Memorial Award was created by LexisNexis® Matthew Bender® in 2001 in honor of Daniel Levy, a member of the Editorial Board of Bender's Immigration Bulletin. Mr. Levy died at the age of 48 on Sept. 14, 2001, in Los Angeles after a long battle with cancer. Mr. Levy was a prolific author, litigator, and scholar, and was widely known and loved by many in the immigration bar. With this annual award Matthew Bender® seeks to honor an individual who emulates the values that informed Mr.Levy's life and work: - enthusiastic advocacy on behalf of immigrant clients; - deep scholarship in immigration law; and - an expansive vision of justice.

Honorees are selected by the members of Editorial Board of Bender’s Immigration Bulletin from open nominations made by readers of the Bulletin. Prior honorees are Ann Benson (2005); Michelle Brané (2012); Lisa Brodyaga (2003); Jayne Fleming (2009); Javier Maldonado (2006); Nancy Morawetz (2007); Christopher Nugent (2004); Michael J. Ortiz (2011); Brent Renision (2010); Philip Schrag (2008); and Charles Wheeler (2002).

KJ

University of Chicago Law Review Symposium, Immigration Law and Institutional Design

The University of Chicago Law Review symposium on Immigration Law and Institutional Design is now available online.

Introduction Adam B. Cox, Richard A. Epstein & Eric A. Posner

What Makes the Family Special? Kerry Abrams

Sharing the Risks and Rewards of Economic Migration Anu Bradford

Outsourcing Criminal Deportees Eleanor Marie Lawrence Brown

Policing Immigration Adam B. Cox & Thomas J. Miles

Immigration Detention: Information Gaps and Institutional Barriers to Reform Alina Das

From Plyler to Arizona: Have the Courts Forgotten about Corfield v Coryell? John C. Eastman

Free Trade and Free Immigration: Why Domestic Competitive Injury Should Never Influence Government Policy Richard A. Epstein

Screening for Solidarity Stephen Lee

Designing Temporary Worker Programs Hiroshi Motomura

The Institutional Structure of Immigration Law Eric A. Posner

International Cooperation on Migration: Theory and Practice Alan O. Sykes

KJ

Hirono Attempt to Assist Families is Blocked

From the Asian American Justice Center:

Asian American Groups Applaud Sen. Hirono for Work on Family Immigration

Sen. Hirono offers amendment that would address family immigration by considering extreme hardships

WASHINGTON--The Asian American Center for Advancing Justice--Asian Americans Advancing Justice-Chicago, Asian American Justice Center (AAJC), Asian Law Caucus (ALC), and Asian Pacific American Legal Center (APALC)--applauds Sen. Mazie Hirono (D-Hawaii) for her work to strengthen our family immigration system.
 
As the only immigrant on the Senate Judiciary committee and in the U.S. Senate, Hirono offered an amendment "Hirono 10" that, if adopted, would have alleviated the extreme hardship some immigrants may experience due to the prolonged separation from their brother, sister, son or daughter not in the U.S. This amendment failed on a vote of 7-11. For many U.S. citizens a sibling or adult child abroad may be the only family he or she has.
 
"We are extremely disappointed that the Senate Judiciary committee refused to accept Sen. Hirono's amendment, which would have provided limited relief for families experiencing extreme hardships," said Mee Moua, president and executive director of AAJC. "We thank Sen. Hirono and the six members who stood with the millions of families awaiting meaningful family reunification. We look forward to working with the Senate on a solution that addresses all families."
 
"Senator Hirono's commitment to crafting a humane immigration reform plan that preserves families has been crucial to Asian Pacific American communities," said Tuyet Le, executive director of Asian Americans Advancing Justice-Chicago. "However, we are disappointed to hear that the Senate Gang of 8 isn't taking into account the enormous and incalculable benefit that our families bring to our lives."
 
"The failure of the Senate Judiciary Committee to pass an amendment that would have strengthened family immigration by considering extreme hardships will have a devastating effect on immigrant communities across the country, including San Francisco's Chinatown, that have served as a gateway community for over 150 years," said Chris Punongbayan, ALC's acting executive director. "We thank Senator Hirono for her work mitigating the damage to our communities caused by this unprecedented shift in our immigration system."
 
Sen. Hirono also offered an amendment to allow Filipino World War II veterans to reunite with their loved ones here in the U.S., which passed by a voice vote.
 
"We applaud Sen. Hirono's willingness to stand up for our communities and for leading the efforts to restore justice to Filipino veterans and their families," said Stewart Kwoh, president and executive director of APALC. "We are gravely concerned, however, that the Senate base bill fails to recognize the importance of family unity for all immigrants and their ability to contribute to the social and economic life of the U.S. We will continue to mobilize to ensure that the path to family reunification remains open and does not exclude our brothers, sisters, and adult married children."
 
The final roll call vote on Hirono 10:
 
The AYES were Sens. Hirono, Blumenthal, Coons, Franken, Klobuchar, Leahy and Whitehouse.
 
The NAYS were Sens. Cornyn, Cruz, Durbin, Feinstein, Flake, Graham, Grassley, Hatch, Lee, Sessions and Schumer.

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Judiciary Committee Sends Immigration Reform Bill to Full Senate

The Senate Judiciary Committee voted 13-5 to send S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, on to the full Senate. In several lengthy sessions, the Committee considered nearly 300 amendments, of which more than 100 were approved.  Most of the amendments that passed did so with bipartisan support.

One of the biggest questions was whether Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) would call a vote on two amendments he sponsored to extend equal treatment to same-sex couples under the U.S. immigration laws. Leahy ultimately decided not to offer the amendments, reportedly coming under pressure from the White House not to offer the amendments.  Republican members of the Gang of Eight who supported the compromise bill threatened that the amendments would sink the compromise legislation.

For more details, click here.

KJ

Farewell to Silva-Trevino: Olivas-Motta v. Holder By Carrie Rosenbaum

Last week, the U.S. Court of Appeals for the Ninth Circuit rejected the Attorney General’s ruling that immigration courts can look beyond the record of conviction to determine if a conviction is a “crime involving moral turpitude.” See Olivas-Motta v. Holder, No. 10-72459 (9th Cir. May 17, 2013). Judge Willie Fletcher, joined by Judge Procter Hug, wrote the opinion. Judge Andrew Kleinfeld wrote a concurrence. 

The Attorney General in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (2008) departed from well-established law and directed immigration judges to look at evidence outside of the record of a criminal conviction to determine if a noncitizen had been convicted of a “crime involving moral turpitude” (CIMT), which may subject him to removal.

Joining the Third, Fourth, and Eleventh Circuits, see Jean-Louis v. Attorney General, 582 F.3d 462 (3d Cir. 2009); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Attorney General, 659 F.3d 1303 (11th Cir. 2011), the Ninth Circuit rejected the Attorney General’s ruling. The court specifically found that, even if an ambiguity exists about a crime, the immigration court cannot go beyond the record of conviction to determine whether the crime is one “involving moral turpitude.”

Factual and Procedural Background

Olivas-Motta was brought by his parents to the U.S. when he was only ten days old. At the time of his removal hearing, he was a married, 33 year old lawful permanent resident. The Department of Homeland Security alleged that Olivas-Motta was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(ii) based on two convictions of CIMTs. Olivas-Motta conceded that a 2003 conviction in Arizona for a facilitation of unlawful possession of marijuana was a CIMT. Four years later, he pled guilty to “endangerment” under Arizona law. Olivas-Motta argued that the endangerment offense was not a CIMT. After considering police reports, which are not a part of the record of conviction, the immigration court ruled that the offense was a CIMT. The BIA dismissed the appeal.

Silva-Trevino’s Invitation to Look Beyond the Record of Conviction

In Silva-Trevino, the Attorney General interpreted the immigration statute to conclude that immigration judges could go beyond the record of conviction. The ruling established a 3-step test. First, the immigration court applies Taylor v. United States, 495 U.S. 575, 602 (1990) to determine whether the crime is categorically a CIMT, an approach reaffirmed in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). Second, if the crime is not a CIMT, the immigration court applies the modified categorical approach, evaluating the record of conviction to determine if the conviction carries immigration consequences. Third, the immigration court could consider evidence outside the record of conviction. Rejecting this third step of Silva-Trevino, the Ninth Circuit determined that nothing in the relevant statutory provisions allows the immigration court to look beyond the record of conviction.

Ambiguity in the Term CIMT Does Not Alter the Procedure

The Attorney General mistakenly relied on ambiguity in the phrase “crime involving moral turpitude” as a justification for permitting judges to go beyond the record of conviction. The Ninth Circuit specifically disagreed with the conclusion that 8 U.S.C. § 1182(a)(2)(A)(i)(I) and 8 U.S.C. § 1227(a)(2)(A)(i-ii) allowed the immigration court to go beyond the record of conviction to determine whether a crime involved moral turpitude. Even if the phrase “crime involving moral turpitude” was “famously ambiguous,” that did not alter the appropriate method for immigration courts to determine if an offense is a CIMT.

The Ninth Circuit explained that the ambiguity of the phrase CIMT does not mean that outside evidence may be considered to determine if a noncitizen has been “convicted of” a CIMT. The court stated that, “[t]o state the obvious, substance and procedure are not the same thing.”

Conviction = Conviction

The Ninth Circuit also examined the Attorney General’s definition of “conviction,” which the immigration court had concluded referred to conduct or behavior. By stretching the definition of “convicted of,” the Attorney General deviated from the well-established categorical and modified categorical approaches and invited immigration courts to consider criminal behavior for which the noncitizen was never convicted.

The statute, however, does not define “conviction” as criminal acts. Conviction means conviction. A conviction of, or being “convicted of,” a CIMT is required by 8 U.S.C. § 1101(a)(48)(A). Moreover, 28 U.S.C. § 1229(c)(3)(B) sets forth what documents can be used to establish a “conviction.” Nothing in either statutory provision offers support for the Attorney General’s approach in Silva-Trevino.

The Attorney General reasoned in part, that “involving” in the definition of a CIMT is what permitted the immigration court to go beyond the record of conviction. The Ninth Circuit rejected this interpretation.

By redefining the term “conviction,” the Attorney General reasoned that the immigration court could look outside the record of conviction for evidence of CIMTs a noncitizen may have committed. The Ninth Circuit made clear that the “conviction,” not “conduct,” is all the courts may consider in evaluating whether a conviction is a CIMT.

“Moral Turpitude” is an Element of the Offense

Applying Nijhawan v. Holder, 129 S. Ct. 2294, 2298 (2009), the Ninth Circuit found that the word “involving” in the generic definition of a crime does not signify a “circumstance” but is instead an element, permitting only consideration of the record of conviction. The court agreed with the Supreme Court’s conclusion that the word “involving” does not suggest that the court can look to specific facts underlying a conviction. Instead, in determining whether a criminal statute involves moral turpitude, courts have historically considered whether the elements of that statute refer to conduct that is “inherently base, vile or depraved, and contrary to private and social duties.”   Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1068 (9th Cir. 2007) (en banc).

By incorrectly characterizing “moral turpitude” as a circumstance, rather than an element, the Attorney General opened the door to evidence outside the record of conviction. Looking to the Supreme Court’s consideration of whether a term was an element in similar contexts, the Ninth Circuit concluded that, because “crime involving moral turpitude” is only a description of the elements of the generic crime, the words “moral turpitude” do not describe a circumstance of the crime.

Moreover, “involving moral turpitude” is not a “circumstance” because there is no “separately described generic crime for which ‘involving moral turpitude’ is a circumstance.” Put differently, without the words “involving moral turpitude,” all that is left is the word “crime,” a broad term encompassing any and every type of crime.. The phrase “crime involving moral turpitude” cannot exist without the last three words, words that do not merely describe a circumstance, but are integral to the definition.

The Ninth Circuit also relied on the Supreme Court’s analysis in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2586 (2010), in which the Court held that the immigration court may look only at the conviction, not uncharged conduct or “what might have been or could have been charged.”

Significance of the Ruling

The impacts of the court’s ruling Olivas-Motta v. Holder in the jurisdiction of the Ninth Circuit will be significant. Immigration courts can no longer review evidence outside of the record of conviction to determine if the noncitizen has been convicted of a CIMT.  As emphasized by the Supreme Court in Moncrieffe v. Holder, the appropriate focus of the immigration court in cases involving removal on criminal grounds is on the conviction, not the underlying conduct.   The court, however, did not expressly rule on whether courts can review evidence outside the record to determine if a noncitizen is eligible for relief when the record of conviction is ambiguous. 

Put simply, in a time when the Department of Homeland Security focuses on the removal of “criminal aliens,” the Ninth Circuit decision in Olivas-Motta v. Holder will impact thousands of removal cases.

Carrie Rosenbaum is an attorney in private practice and adjunct immigration professor at Golden Gate University.

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For those litigation cases with Silva-Trevino issues, visit this website or contact Isaac Wheeler at the Immigrant Defense Project at: iwheeler@immigrantdefenseproject.org.