Saturday, October 20, 2018
In 2016, signs like this popped up around the UK:
The poster, turned meme, recently popped up in one of my social media feeds. My unsuccessful internet sleuthing to determine the origins of the poster (other than UK, 2016) led me to this Reddit feed, which also dates back to 2016:
Ah, Saturdays. You're always so productive.
With the midterm elections quickly approaching, President Trump is returning to immigration as a campaign issue. See here and here. The "caravan" of Central Americans now in southern Mexico have been the focal point of his speeches and tweets in recent days. Expect the rhetoric to continue until election day in November.
Friday, October 19, 2018
NPR explores how DACA’s uncertain fate is impacting a young newlywed couple, one of whom is undocumented. “It is a very specific cloud hanging over us. It just feels like we're at pause. Travel plans are paused. Long-term plans are paused. We want to buy a house. We can't really take too many steps in any direction until we have this resolved.”
NPR explores how DACA’s uncertain fate is impacting a young -- and delightful -- newlywed couple, one of whom is a DACA beneficiary (and licensed lawyer). “It is a very specific cloud hanging over us. It just feels like we're at pause. Travel plans are paused. Long-term plans are paused. We want to buy a house. We can't really take too many steps in any direction until we have this resolved.”
AP offers a report on the experiences of migrants fleeing Venezuela:
"About 1.9 million Venezuelans have fled their collapsing nation since 2015 in one of the largest migrations in the world in recent years. The most desperate cannot afford a bus or plane ticket, and so they risk their lives to escape on foot. Every day, more than 650 migrants start on the walk out of Venezuela. They rush illegally across the border with Colombia, frequently encountering armed criminals. They walk for miles along roads, carrying their belongings. They wrap themselves in blankets, bracing against the cold of frigid mountains. For nine days, a team of Associated Press journalists followed a Venezuelan mother and daughter as they crossed three borders and nearly 2,700 miles (3,460 kilometers) — about the distance from Los Angeles to New York City.
This is an account of the people, places and dangers migrants encounter along the way."
Lorelei Laird for the ABA Journal reports that a 5-year-old Honduran asylum seeker was separated from her grandmother after the Trump administration officially ended its policy of separating families—and asked to sign away her right to a bond hearing, according to a New Yorker article.
Thursday, October 18, 2018
Justice Department Is Unlawfully Failing to Publicly Post Thousands of Decisions in Immigration Cases, New York City Nonprofit Tells Court
The federal government is unlawfully failing to publicly post thousands of final orders and opinions in immigration cases and should be ordered to post them online, the New York Legal Assistance Group (NYLAG) said in a lawsuit filed today by attorneys at NYLAG and Public Citizen.
The Board of Immigration Appeals (BIA), which is a component of the Executive Office for Immigration Review (EOIR) within the U.S. Department of Justice, makes the unpublished orders available to immigration judges and government attorneys but not to immigrants or their lawyers. The orders are required to be publicly posted under the Freedom of Information Act (FOIA), and the unequal access puts NYLAG clients at a disadvantage, the suit says.
The suit, filed in U.S. District Court for the Southern District of New York, asks the court to order all decisions made since 1996 to be published online. Public Citizen Litigation Group attorneys, along with NYLAG attorneys, are representing NYLAG.
“We are trying to help clients with one hand tied behind our backs,” said Danielle Tarantolo of NYLAG, a New York City nonprofit that provides free legal services to low-income New Yorkers in a variety of areas, including immigration. “The government lawyers seeking to remove our clients rely on these unpublished decisions, as do immigration judges and the BIA itself – but we cannot even access this body of law. The government’s information advantage is fundamentally unfair.”
The BIA hears appeals in cases adjudicated by immigration judges and district directors of the U.S. Department of Homeland Security. Over the past decade, the BIA has voted to designate approximately 30 decisions per year as precedential, which means that BIA publicly posts them online. But thousands of the BIA’s decisions are unpublished and are not accessible in an electronic format to the public, including immigrants and their advocates and attorneys, as required by FOIA.
On June 8, NYLAG submitted a FOIA request asking the BIA to comply with its statutory obligations to post online all unpublished decisions since Nov. 1, 1996, and to make all future unpublished decisions available in the electronic reading room. EOIR denied NYLAG’s FOIA request, and NYLAG submitted an administrative appeal of the denial. NYLAG filed suit after failing to receive a determination on its administrative appeal by the statutory deadline.
“The government’s refusal to publicly post these decisions undermines FOIA’s goals of piercing the veil of government secrecy and opening agency action to the light of public scrutiny,” said Public Citizen Litigation Group attorney Patrick Llewellyn. “The law is clear that these decisions must be publicly posted in an electronic format. We hope that the court will promptly order the government to remedy its decades-long violation of FOIA’s clear requirement.”
Read the lawsuit (PDF).
This handbook provides guidance for anyone considering serving as an expert witness in an asylum case, as well as best practices for immigration attorneys working with expert witnesses in asylum cases.
This NPR story looks at some local resistance to the California Values Act, also referred to as the state "sanctuary" law. I think that the story overstates the conflict in the state. A couple of localities, such as small Los Alamitos in Orange County in Southern California, which has sought to opt out of the state law. Just a few miles away, the large city of Santa Ana has declared itself to be a "sanctuary city."
Attorney Daniel Kowalski
Tal Kopan for the San Francisco Chronicle reports on an immigration story that seemingly could only happen in the era of Trump.
The Trump administration has subpoenaed an immigration attorney in an attempt to determine who leaked an internal memo that laid out how Immigration and Customs Enforcement should implement Attorney General Jeff Sessions’ decision to restrict asylum for victims of domestic violence and gang crimes. The attorney said he doesn’t intend to reveal his sources or any other information about how he obtained the memo.
The subpoena was sent to Colorado-based immigration attorney Daniel Kowalski, who is also the editor of Bender’s Immigration Bulletin. It demands that Kowalski hand over “all information” related to the memo he posted in July, including when, how and where he got it. The summons asks for “contact information for the source of the document.”
At issue is a July 11 memo written by the ICE principal legal adviser about Sessions’ decision to reinterpret asylum law in such a way as to deny relief to many victims of domestic and gang violence. The change could affect tens of thousands of asylum seekers.
Wednesday, October 17, 2018
Kirk Semple for the New York Times reports that President Trump threatened yesterday to withhold aid from the Honduran government if it did not halt a mass migration of more than 1,500 people, mainly from Honduras, who crossed into Guatemala this week and are apparently headed toward the United States. The President said the following on his Twitter account:
Donald J. Trump
The United States has strongly informed the President of Honduras that if the large Caravan of people heading to the U.S. is not stopped and brought back to Honduras, no more money or aid will be given to Honduras, effective immediately!
6:05 AM - Oct 16, 2018
56.1K people are talking about this
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Historically, most landmark cases that present foundational constitutional questions trickle up to the Supreme Court over the course of several years. During that deliberative process, advocates on both sides could develop arguments and implement a carefully-crafted litigation strategy. Other landmark cases race to the Supreme Court following major crises. These latter cases arose out of true exigencies: the judiciary was forced to mobilize in response to an emergency that the other branches were unable to resolve.
Trump v. Hawaii fits into neither category: the legal issues were not difficult and the circumstances were not exigent. Without question, the president has the statutory and constitutional authority to deny entry to aliens from certain countries based on national-security concerns. Yet, the judiciary still moved at warp speed to halt President Donald Trump’s signature policies. Why? The “travel bans”—which denied entry to aliens from predominantly Muslim nations—traced their roots to overtly anti-Muslim statements made by then-candidate Trump. Furthermore, the government could only offer the faintest patina of a rational basis to defend the policies. Confronted with these facts, the lower courts uniformly enjoined the travel bans. Ultimately, only the Supreme Court upheld the final version in its entirety. This essay recounts the travel bans’ 18-month litigation blitz.
This contribution to the Cato Supreme Court Review provides an early assessment of Trump v. Hawaii. Part I discusses the first iteration of the travel ban, which President Trump signed one week after his inauguration. Part II dissects Travel Ban 2.0. Part III introduces Travel Ban 3.0, which was announced in September 2017. This policy—designed to be permanent—was promptly challenged in district courts. Once again, nationwide injunctions were affirmed by the courts of appeals. Yet, in December 2017, the Supreme Court permitted the entire policy to go into effect. This decision was a conclusive indication that the lower courts had gone astray. As a result, there should have been no surprises when, in June 2018, the Supreme Court upheld the third iteration in its entirety. Now that this saga has drawn to an anti-climactic close, Part IV places the travel ban in perspective.
Tuesday, October 16, 2018
President Barack Obama was dubbed “Deporter-in-Chief” by immigrant rights advocates for good reason. During his eight years in office, his administration formally removed more than three million noncitizens, compared to two million during George W. Bush’s tenure and about 900,000 under the Bill Clinton administration. At the time he left office, Obama was definitely the reigning Deportation Champion.
Enter Donald Trump. Given the immigration enforcement exploits of President Trump and his administration, Obama’s clutch on the title of “Deporter-in-Chief” is in serious jeopardy. In spite of court actions constraining Trump’s travel ban and Congress’s hesitance to fund the construction of a border wall or a deportation army, Trump’s enforcement henchmen have initiated a frightening deportation campaign with resources that were already in place. Interior enforcement is up, and his threat to local law enforcement officials to take away federal funds if they refuse to cooperate is working. Between his tweeting and the unleashing of mean-spirited Immigration and Customs Enforcement (ICE) agents, noncitizens in the country are scared as hell. Trump is easily on his way to yanking the deportation champ moniker away from Obama.
A central focus of this book is on an important segment of Obama’s removal priority at the border that helped him earn the Deporter-in-Chief title—the apprehension, detention, and removal prioritization of women and children fleeing violence in Central America. In my view, those efforts were reprehensible and cast a dark shadow on Obama’s legacy, even though he took some remarkably courageous steps on behalf of immigrants as well. He deserves credit for DACA, however, Obama’s policy on women and children fleeing Central America has visited great and unnecessary hardship and trauma on migrants victimized by violence.
I was moved to develop this project because the story needs to be told about what in my view is a tragic mistake in so-called immigration enforcement—a mistake that began at the hands of President Barak Obama. While much of the migrant rights community’s attention understandably has been focused nationally on the escalation of immigration enforcement under Donald Trump and internationally on the serious refugee crises like those involving Syrians and the Rohingya, our own humanitarian crisis in this hemisphere has been grossly mishandled starting long before President Trump took office.
While the project began as an effort to shed light on the dark side of Barack Obama’s immigration legacy, the evolution to a more comparative work given Donald Trump’s no-holds-barred harsh immigration enforcement strategies was necessary. His full court attack on immigrants—from Mexicans, to Muslims and those who would be regarded as “low priority” by Obama—has been constant. There is no denying that immigrants and their advocates are constantly on call under Trump.
"The Supreme Court should affirm the Ninth Circuit—but it should require that the noncitizen seeking release must show colorable grounds for contesting removal or obtaining other relief under the INA. Application of this substantive stake test will avoid constitutional problems while vindicating Congress’s concern with noncitizens’ appearance in immigration court."
Justice Ginsburg’s Query in Preap and the Best Interests of the Child by Dr. Spyros D Orfanos, Clinic Director, New York University, Postdoctoral Program in Psychotherapy and Psychoanalysis, and Jessica L. Rofé, Immigrant Defense Fellow, Immigrant Rights Clinic, New York University School of Law
On Wednesday, October 10, 2018, the Supreme Court heard oral argument in Nielsen v. Preap, a case testing the federal government’s authority to reach into communities, arresting and jailing immigrants without a bond hearing, including greencard holders and asylees. At oral argument, Justice Ginsburg queried why two people who had received convictions for identical offenses, one of whom is arrested by immigration officers immediately upon release from criminal custody and the other who is arrested and jailed years after reuniting with family and community, should be treated differently under the mandatory detention statute. To be clear, mandatory detention is extreme and devastating in all its forms, uprooting families, many of whom have built their lives in the United States for decades. But the sudden detention of family members who have since returned to the community involves a special kind of cruelty. One of us served as counsel to amici, whose clients and members have suffered from the government’s overreaching interpretation of its detention powers; the other as a clinical psychologist who has evaluated family members of those who were abruptly disappeared. Together, we have observed firsthand the serious negative mental health consequences of the abrupt disruptions of family life that are caused by the government’s expansive reading of the mandatory detention statute.
If we are fortunate, most of us grow up with parents, family, and community that allow us to benefit from the foundation of loving attachments. Secure attachments lay the groundwork for a sense of trust, confidence, and emotional health in the infant and young child. Consistent attachments build resilience, and aid in the survival of loss and trauma. If a child is separated from family and community abruptly the outcome can be psychologically devastating.
Psychologists have known this for decades. In the 1940s, Renee Spitz observed, “If a child is taken from his mother’s care, when he is so passively and passionately attached to her, it is indeed as if his world is shattered. . .It is really as if his mother has died.” Today, the psychological toll of broken attachments is empirically well documented; we are hard-wired to feel serious distress when separated from parents.
Unfortunately, for many children in our country the protection offered by caring and compassionate parenting is seriously interrupted. This is not limited to migrant children and parents separated at the US-Mexico border. It is also the case for children born in the US to noncitizen parents, including asylees and lawful permanent residents whose parents are suddenly removed from their homes.
One of the most brutal and long ranging consequences of this kind of separation is the violation of a child’s attachment to parents. The evidence of the major emotional and physical consequences of abrupt and/or prolonged separation is unequivocal. Children living under the threat of parent deportation, family disruption, and broken bonds often suffer serious depression, anxiety, detachment, and behavioral disturbance. Symptoms such as sleep difficulty, nightmares, flashbacks, crying, and aggressive outbursts are common. Many even develop medical problems, such as autoimmune illnesses. These consequences can last a lifetime.
Take the case of “Ms. Fatimatou,” who was detained and placed in deportation proceedings in 2016 by ICE nearly a decade after having been arrested for a minor stealing offense. She took money from her boss with the hope of replacing it with her next paycheck because she was poor and was trying to save her family from eviction. The criminal court judge did not jail her, rather, after her arrest she was sentenced to probation. She returned to her life as a working mother, completing probation and repaying all of the funds she took.
Nearly a decade after her conviction, ICE arrested Ms. Fatimatou as she was dropping off her 4-year-old, “Obi”, at his daycare. When her children returned that day from school, their mother was gone, all for a conviction that predated the birth of her youngest child. ICE detained Ms. Fatimatou in upstate New York for over six months, until her lawyers secured her release after a bond hearing--the very right the Trump Administration is trying to take away.
The three children were bereft. The oldest, an adolescent boy, was full of rage at the injustice to his mother. The middle child, a girl, became seriously detached from others and, when not mumbling, was mute. Little Obi was overwhelmed with symptoms of debilitating anxiety, frenzy, and fear. The children’s resiliency, coping skills, and cognitive abilities were compromised. They were all at high risk for negative mental health outcomes.
The psychological assessment of Ms. Fatimatou found her to be a responsive spouse and a nurturing mother. Yet, despite the early emotional foundation she provided for her children there was frightening damage caused by the detention. Ultimately and in part as a result of our interventions on their behalf, Ms. Fatimatou received a waiver of her deportation by the immigration court.
How can we ever calculate the costs of the trauma to the children, the family and the community as a result of mandatory detention? How is it possible that our federal government does not recognize the need on the part of children for loving and consistent attachments?
The detention of parents of American-born children is a harsh move away from the explicit goal of post-World War II immigration policy: family reunification. The government should keep families together and prioritize attachment relationships regardless of immigration status. A sense of belonging is crucial for mental health, supporting families, and building communities. We desperately need the Supreme Court and other judicial systems to honor the best interests of children.
Spyros D Orfanos, PhD, ABPP is Clinic Director of the New York University, Postdoctoral Program in Psychotherapy and Psychoanalysis and heads the Immigration and Human Rights Work Group. He is Fellow of the American Psychological Association.
Jessica L. Rofé is the Immigrant Defense Fellow with the Immigrant Rights Clinic at New York University School of Law and a co-author of the amicus brief submitted on behalf of the Advancement Project and other groups in Nielsen v. Preap
Immigration Article of the Day: Who Needs DACA or the Dream Act? How the Ordinary Use of Executive Discretion Can Help (Some) Childhood Arrivals Become Citizens by Susan B. Dussault
Over two million immigrants without legal status entered the country as children. These childhood arrivals have the constitutional right to attend public schools without charge, and billions of taxpayer dollars have been invested in their education. Offering these young people the opportunity to remain in the United States, use their education to contribute to the communities in which they have been raised, and become citizens would let the country realize its return on this investment. Yet thus far Congress, which has the exclusive power to create new paths to citizenship, has failed repeatedly to pass legislation that would enable childhood arrivals to earn some form of legal immigration status and eventually naturalize.
The Deferred Action for Childhood Arrivals program (DACA), which the Obama Administration launched in August 2012, partially addressed this issue by letting eligible childhood arrivals stay and work in the country for two-year renewable increments. In September 2017, the Trump Administration rescinded DACA, citing the Attorney General’s conclusion that it was an unconstitutional exercise of authority by the Executive Branch. Less than eight hours later, Trump stated that if Congress failed to legalize DACA within six months he would reconsider the issue.
If Congress fails to codify DACA or enact some form of the DREAM Act (which would let childhood arrivals earn permanent residence and eventually citizenship), it seems highly unlikely that the Trump Administration could, or would, reinstate DACA, given that its attorney general has declared the program unconstitutional. But there are other steps the Executive Branch could take to make it easier for childhood arrivals to legalize. Moreover, neither DACA nor the DREAM Act offers a complete solution: codifying DACA gives its recipients no legal status, and every iteration of the DREAM Act Congress has considered imposes requirements that disqualify many childhood arrivals. Therefore, regardless of what Congress may do, it is worth examining the unilateral and uncontroversial steps that the current administration (or a subsequent one) could take to help childhood arrivals become citizens. This Article identifies the discretion that the Executive Branch has with the military, cancellation of removal, parole, admissibility waivers, deferred action, and surplus immigration application fees. The Article then assesses the various ways the Executive Branch could employ that discretion to improve childhood arrivals’ access to the paths to permanent residence and citizenship created by Congress.
Melting Pot or Civil War?: A Son of Immigrants Makes the Case Against Open Borders by Reihan Salam (2018)
Melting Pot or Civil War?: A Son of Immigrants Makes the Case Against Open Borders by Reihan Salam (2018)
For too long, liberals have suggested that only cruel, racist, or nativist bigots would want to restrict immigration. Anyone motivated by compassion and egalitarianism would choose open, or nearly-open, borders—or so the argument goes. Now, Reihan Salam, the son of Bangladeshi immigrants, turns this argument on its head. In this deeply researched but also deeply personal book, Salam shows why uncontrolled immigration is bad for everyone, including people like his family. Our current system has intensified the isolation of our native poor, and risks ghettoizing the children of poor immigrants. It ignores the challenges posed by the declining demand for less-skilled labor, even as it exacerbates ethnic inequality and deepens our political divides. If we continue on our current course, in which immigration policy serves wealthy insiders who profit from cheap labor, and cosmopolitan extremists attack the legitimacy of borders, the rise of a new ethnic underclass is inevitable. Even more so than now, class politics will be ethnic politics, and national unity will be impossible. Salam offers a solution, if we have the courage to break with the past and craft an immigration policy that serves our long-term national interests. Rejecting both militant multiculturalism and white identity politics, he argues that limiting total immigration and favoring skilled immigrants will combat rising inequality, balance diversity with assimilation, and foster a new nationalism that puts the interests of all Americans—native-born and foreign-born—first.
For an interview with the author about the book, click here.
Monday, October 15, 2018
The Pope has made Óscar Romero, a modern human rights figure, a saint. Romero served as the fourth Archbishop of San Salvador. He spoke out against poverty, social injustice, assassinations, and military repression. Romero was assassinated while holding mass in the chapel of the Hospital of Divine Providence. Investigations by the United Nations-created Truth Commission for El Salvador concluded that an extreme right-wing leader, Roberto D'Aubuisson, had given the order to kill Romero.
NPR offered some background about Archbishop Romero and his place in human rights history.
For analysis of the canonization of Archbishop Romero
For analysis of Romero's canonization, click here.
Here is Romero's last sermon as depicted in the file "Romero":