October 7, 2006
In "New York Immigration Court, Asylum Roulette," NINA BERNSTEIN writes about the game of chanmce asylum applicants play in the immmigration court. The article starts like this:
Tears streaked Meizi Liu’s face in 2003 as she told an immigration judge in New York of being forcibly sterilized in China. The judge, Jeffrey S. Chase, had won awards as a human rights advocate before his appointment to the bench in 1995. But now he had 1,000 pending cases, and he had heard it all before. He insisted that she was lying, ridiculed her story and, when she would not recant, denied her petition for asylum. The tables turned after appeals by Ms. Liu and others reached federal court this year. In scathing decisions, the court rebuked Judge Chase for “pervasive bias and hostility,” “combative and insulting language” and remarks “implying that any asylum claim based on China’s coercive family planning policies would be presumed incredible.” It is always judgment day in the windowless courtrooms where immigrants plead to stay in the United States. But these days, as never before, the nation’s 218 immigration judges are also being judged, even as they struggle to complete 350,000 cases a year amid an immigration debate that promises to send them many more. (emphasis added).
For the entire story from the New York Times, click here.
Undocumented Restaurant Workers Sue Cafe Express
Undocumented workers at Cafe Express (owned by Wendy's) in Dallas and Houston had money deducted from their paychecks to pay for lawyers working on their green cards. But the lawyers screwed up and the workers are left with nothing, according to class-action lawsuits filed in both cities. DIANNE SOLÍS and KAREN ROBINSON-JACOBS (Dallas Morning News) fill in the Dallas picture; RASHA MADKOUR (Associated Press) and JENALIA MORENO (Houston Chronicle) give us the Houston angle. For Dan Kowalski's report, with links, click here.
How many ways can undocumented workers be exploited?
Sheriff's Training on Immigration
A plan to train hundreds of Orange County sheriff's deputies in immigration law, once touted as a model for law enforcement nationwide, will be sharply trimmed to include only about a dozen deputies, Sheriff Michael S. Carona said Friday.
Because of limited federal funding, only 12 to 15 deputies working in jail intake will be trained, a disappointed Carona said. Immigration and Customs Enforcement, the agency that will oversee the program, is financially stretched and lacks the personnel to train more, the sheriff said. Click here.
From the Book Shelf
This new book is worth a look: International Migration And Global Justice by Satvinder S. Juss. How should international law approach the critical issue of movement of peoples in the 21st century? This book presents a radical reappraisal of this controversial problem. Challenging present–day ideas of restrictions on freedom of movement and the international structure that controls entry to states, it argues for a new blueprint for international migration policy that eliminates waste, aids both developing and developed societies and brings attendant benefits to voluntary migrants and involuntary refugees alike. In a world of increasing disorder, it is suggested that current policy only adds to international instability and threatens the interests of a functional global community. For more information, click here.
A Book Recommendation From A Blog Reader
A reader writes that "for a different take on illegal immigration and multiculturalism, one that makes sense." Check out the book MULTICULTURALISM, IMMIGRATION AND AZTLAN By Maria Hsia Chang (Professor of Political Science, University of Nevada Reno). Here is a description (not mine) of the book:
One of the standard arguments invoked by those in favor of massive immigration into the United States is that our country is founded on immigrants who have always been successfully assimilated into America's mainstream culture and society. As one commentator put it, "Assimilation evokes the misty past of Ellis Island, through which millions entered, eventually seeing their descendants become as American as George Washington." Nothing more vividly testifies against that romantic faith in America's ability to continuously assimilate new members than the events of October 16, 1994 in Los Angeles. On that day, 70,000 people marched beneath "a sea of Mexican flags" protesting Proposition 187, a referendum measure that would deny many state benefits to illegal immigrants and their children. Two weeks later, more protestors marched down the street, this time carrying an American flag upside down. Both protests point to a disturbing and rising phenomenon of Chicano separatism in the United States — the product of a complex of forces, among which are multiculturalism and a generous immigration policy combined with a lax border control.
For more about the book, click here.
When claims are made about immigrant separatism, I always wonder whether the issue is separatism or exclusion from U.S. society that is the problem. For a discussion of such exclusion, see Michael Olivas's new anthology Colored Men And Hombres Aquí: Hernandez v. Texas and the Emergence of Mexican American Lawyering (2006), which discusses the 1954 Supreme Court decision that Mexican-Americans could not be excluded from jury service.
October 6, 2006
Summary of Recent Immigration Events on the Hill
The two most controversial bills, H.R. 6094 (“The Community Protection Act”- this includes the provision that codifies indefinite detention) and H.R. 6095 (“Immigration Law Enforcement Act of 2006”) did not pass the Senate or as part of must-pass legislation. This is due in large part to select Members in the Senate, (including Senators Specter, Warner, Craig and Cochran) who refused to let the House Republican leadership attach immigration enforcement measures onto must-pass spending bills. Of course, this does not preclude these measures from re-emerging in the lame duck or next year. (Note: both of these bills passed the House). Some of the more troubling measures in the above-two bills include provisions that expand the expedited removal program to reach people who may have resided in the United States for many years; overturn two Supreme Court decisions by codifying indefinite detention for immigrants awaiting removal; grant authority to state and local police to enforce all federal immigration laws, including civil immigration law violations; and shield the Department of Homeland Security from any accountability for its mistakes or misapplication of the law and basically give the agency unchecked power. Unfortunately, the fence bill (H.R. 6061) did pass the Senate and House. This bill authorizes for 700 miles of fencing. Also, the President has signed the HS Approps bill, which includes funding for the following components of the DHS Secure Border Initiative: 1,500 border patrol agents, 6,700 detention beds, and $1.2 billion for border fencing, vehicle barriers, technology, and tactical infrastructure. This bill also includes the Border Tunnel Prevention Act (reintroduced as H.R. 4830 last month). Here is a link to the DHS press release: http://www.dhs.gov/dhspublic/interapp/press_release/press_release_1019.xml For more information on the House legislation, please see: http://www.immigrationforum.org/DesktopDefault.aspx?tabid=777 Shoba Sivaprasad Wadhia, Esq. Senior Policy Associate/Counsel National Immigration Forum
Jim Chen: Born in the USA
Michael Olivas writes that Jim Chen has an "excellent blog, and he dips into immigration law in his most recent posting." http://jurisdynamics.blogspot.com/2006/10/born-in-usa.html
Recent Events in Posada-Carriles
Dan Kowalski reports that Immigration and Customs Enforcement ("ICE") served Luis Posada-Carriles with an "Interim Decision to Continue Detention," as part of the government's pleadings in an ongoing habeas case in El Paso. MANUEL ROIG-FRANZIA gives us the background this controversial and longrunning case in the Washington Post; ALICIA A. CALDWELL of AP gives us the post-decision fallout. For links, see the Kowalski write-up at http://www.ijjblog.org/2006/10/posadacarriles_will_chill_a_li.html
Domestic Battery Not a Crime of Moral Turpitude
In Galeana-Mendoza v. DHS (10/06/2006), the Ninth Circuit held that domestic battery under the California penal is not a crime of moral turpiture rendering an immigrant removable. For the opinion, click http://www.ca9.uscourts.gov/ca9/newopinions.nsf/9E8404C6C5B25485882571FF0055C69A/$file/0473100.pdf?openelement
October 5, 2006
Students Protest Minutemen at Columbia -- See Video
After a 45-minute long diatribe by a preachy opening speaker, during which a packed crowd inside Roone Arledge Hall at Columbia grew increasingly irate, main event Jim Gilchrist was rushed by a large group of students, in what descended into a free-for-all on the stage. Check out the story, with links to a videp by clicking here.
For the "Full Statement of Columbia Students Who Occupied the Stage", click here. Thw students begin the statement as follows: "In the aftermath of the protest on the night of October 4 against Jim Gilchrist and the racist Minutemen at Roone Arledge auditorium, we want to state clearly: We are proud to send the message to the country that racist and fascist groups are not welcome at Columbia or in New York City."
Increase in Interior Enforcement?
It looks like there may soon be an increase in interior enforcement of the immigration laws -- at least in Arizona. The Arizona Daily Star reports in a story by Thomas Stauffer that U.S. Immigration officials "have the funding and personnel to bust Arizona businesses that willingly hire illegal workers and are on the verge of at least one criminal indictment of a major state employer, a spokesman said." "We have what I would prefer to characterize as a fortunate change in circumstances where we finally have the personnel, budget and staff to enable us to enforce laws that should have always been enforced," said Russell "Pete" Ahr, a spokesman for Immigration and Customs Enforcement in Phoenix. Click here for the full story.
Personnel for interior border enforcement has dropped during the Bush Administration. However, there have been sporadic highly-publicized workplace enforcement measures, such as those involving Wal-Mart. This sounds like more of the same.
October 4, 2006
President Signs Border Fence Bill
President Bush on Wednesday signed a homeland security bill that includes an overhaul of the Federal Emergency Management Agency and $1.2 billion for fencing along the U.S.-Mexico border to stem illegal immigration. Standing before a mountainous backdrop in Arizona, a state that has been the center of much debate over secure borders, Bush signed into law a $35 billion homeland security spending bill that could bring hundreds of miles of fencing to the busiest illegal entry point on the U.S.-Mexican border. See this and a full set of recent immigration stories by clicking here.
24th Annual Edward L. Dubroff Legal Writing Contest
.fo24th Annual Edward L. Dubroff Legal Writing Contest
The American Immigration Law Foundation sponsors a writing competition and award in memory of long-time leader and scholar of the immigration bar, Edward L. Dubroff (for a biography of Mr. Dubroff, click here). The Dubroff Award promotes scholarship and excellence in analytical writing on U.S. immigration law subjects.
Submission Deadline: March 12, 2007 (5:00pm ET) Unpublished scholarly manuscripts on any aspect of U.S. immigration and nationality law many be submitted for competition. The competition is limited to U.S. accredited law school students. The winning author will receive an honorarium of $1,000. Submission Requirements: Manuscripts may be no longer than 50 pages, including endnotes. Brevity is encouraged, but not at the sacrifice of quality. Submissions must be in electronic format (as an email attachment--Word or WordPerfect format only).
For more details, click here.
"On the streets, . . . the Border Patrol calls the shots."
CLAUDINE LoMONACO in the Tucson Citizen writes: "According to the courts, the mere presence of an illegal immigrant in a vehicle does not mean the driver has committed a crime. On the streets, however, the Border Patrol calls the shots." Yet, "A 1999 class-action law suit, Gete v. Immigration and Naturalization Service, successfully challenged the Border Patrol's seizure policy. 'It's absolutely incorrect what they're saying that they can seize just because there is somebody illegally in the car,' said Robert Pauw, a Seattle lawyer who filed the suit. 'They cannot do that and it's very clear.' Click here for Dan Kowalski's story and a link to pertinent documents in the Gete lawsuit.
What Rhymes with Scalia? Tequila?
Jennifer Chacon discussed the Toledo-Flores case on the blog earlier. CNN reported on this oral argument exchange involving Justice Scalia:
Justice Antonin Scalia opened the Supreme Court's new term Tuesday by questioning whether a man deported to Mexico would be "abstaining from tequila" for fear of violating his U.S. parole terms, in a case involving a state/federal conflict over the seriousness of drug crimes involving immigrants.
Toledo-Flores was deported in April, his lawyer Timothy Crooks told the justices in oral arguments, but rejected suggestions the case is moot as a result. His client was still subject to "supervised release", a form of parole that, technically at least, could have him under U.S. jurisdictional control over his behavior.
Scalia appeared incredulous. "No one thinks your client is abstaining from tequila for fear of being" sent back to the United States, he said. Supervision "is impossible once he leaves the country. This is an ingenious exercise of the conceivable."
Neither Crooks nor the other justices reacted visibly to Scalia's remarks, and there was no immediate reaction from immigrant rights activists, many of whom were in the courtroom.
P.S. A controversy is brewing over the Scalia remark
Dan Sokol (Wisconsin) opined on the Latino-law-Profs listserve that "Somehow I doubt that Scalia would have made the same comment about drinking grappa if the immigrant was from Southern Italy." In an article entitled "Scalia's 'Tequila' Remark Raises Eyebrows During Immigrants' Rights Argument," Tony Mauro in Legal Times writes of the remark: "During oral arguments Tuesday in an immigrants' rights case, Supreme Court Justice Antonin Scalia made a reference to one of the parties, a Mexican man who has been deported back to his country, as someone unlikely to keep from drinking tequila on the chance he could return to the United States." Click here for the full story. On a vaguely related note, I wonder if Justice Scalia knows what mescal is.
October 3, 2006
Lopez v. Gonzalez and Toledo-Flores v. United States arguments available on the web
This year, the Supreme Court is posting oral argument transcripts on the day that a case is argued. So those who are interested in finding out how arguments went in the two "aggravated felony" arguments that took place today can read all about it by visiting the Supreme Court's website. The argument for the consolidated cases is listed under "05-547 Lopez v. Gonzalez."
The transcript of this particular argument is a wild adventure in statutory interpretation. Argument was not always crystal clear -- indeed, at one point, Justice Scalia was prompted to tell the government's lawyer "You thoroughly confused me."
Arguments over the possible mootness of Toledo-Flores' appeal took up quite a bit of time -- about 20% of the transcript. Counsel for Toledo-Flores got to talk about nothing else. Scalia and Roberts seemed particularly skeptical of Toledo-Flores' arguments.
The discussion of the mootness issue left the Court with a lot less time to ferret out what Congress means to include as "drug trafficking crimes" for purposes of the aggravated felony provision.
Nevertheless, various members of the Court found time to discuss at some length the questions of whether Congress really intended state drug laws to determine the immigration consequences of drug crimes. And at one point, Chief Justice Roberts questioned the government's lawyer as to whether he was given pause by the fact that the government's interpretation simple possession equivalent to drug trafficking. This theme played out a few times over the course of the questioning.
Scalia spent a good deal of time trying to determine whether the government's argument that a state court conviction controlled whether something was a "drug trafficking crime" for purposes of section 924(c) as referenced in the INA's aggravated felony definition conflicted with a prior position that the government had (consistently and successfully) taken before the courts regarding 924(c) convictions for purposes of sentencing enhancements [pp.23-24; 38-39]. Breyer suggested that the government's own prosecutions under 924(c) in other contexts call into question the interpretation of that statute proposed by the government in this case [pp.27-29]. Neither of these issues was the central focus of any of the briefs, and neither was satisfactorily resolved during argument.
CRACKDOWN ON IMMIGRANTS EMPTIES A TOWN AND HARDENS VIEWS
Christian Science Monitor reports that Bill Hing, an immigration law professor at UC Davis, says that increased raids by officials will stimulate more pro-immigrant activity, which, in turn, will lead to more enforcement. Click here for the full story.
Mexico sends U.S. diplomatic note criticizing plan for border fence
The Associated Press reports that Mexico sent a diplomatic note to the U.S. government saying a plan to build hundreds of miles (kilometers) of fencing on the border to block illegal immigrants would damage relations. President-elect Felipe Calderon urged U.S. officials to reconsider the border plan, saying one "could stop more migrants with a kilometer of new roads and development (in Mexico) than with a wall." In the letter sent Monday to the U.S. State Department, Mexico's Foreign Relations Department called for comprehensive immigration reform to address the issue that has been a sticking point between the countries for years. Click here for the full story.
Sounds like the border fence and an enforcement approach is not good for U.S./Mexican relations.
Netscape ran some interesting commentary on the AP story. It begins like this:
Netscape Anchor Commentary Karina: This morning Netscape News asked two immigration experts to respond to this story. John Keeley is director of communications for the Center for Immigration Studies -- a Washington, D.C.-based non-profit think tank devoted to the study of the impact of immigration on the United States, and an organization that has advocated for stricter border control for some time. We also spoke with Kevin Johnson, a professor at UC Davis and a contributor to the ImmigrationProf Blog. Click here for the rest of the commentary and some heated exchanges among the readers.
From the Book Shelf
Be sure to check out Bill Hing's new book, Deporting Our Souls: Values, Morality, and Immigration Policy (Cambridge University Press, 2006). It offers a fresh perspective on the current immigration debates and the U.S. government's deadly efforts to close the border and overbroad policies directed at Arabs and Muslims in the name of national security. Hing uses real world stories of immigrants to make his points and drive them home. To make the book even better, Hing makes the discussion readable.
In the past three decades, images of undocumented immigrants pouring across the southern border have driven the immigration debate and policies have been implemented in response to those images. The Oklahoma City bombings and the tragic events of September 11, both of questionable relevance to immigration policy have provided further impetus to implement strategies that are anti-immigration in design and effect. Deporting Our Souls discusses the major immigration policy areas - undocumented workers, the immigration selection system, deportation of aggravated felons, national security and immigration policy, and the integration of new Americans - and the various immigration reform proposals on the table. Hing suggests his own proposals on how to address the policy challenges from a perspective that encourages us to consider the moral consequences of our decisions. He also thoughtfully reviews some of the policies that have been put forth and ignored and suggests new policies that would be good for the country economically and socially.
Immigration Cases Argued in U.S. Supreme Court Today
Can a State Felony Drug Conviction Equivalent to a Federal Misdemeanor Be a "Removable" Offense? Lopez v. Gonzales (Docket No. 05-547) (8th Circuit) and Toledo-Flores v. United States (Docket No. 05-7664) (5th Circuit) were argued before the Supreme Court today.
The Immigration and Nationality Act (INA) attaches many consequences to a noncitizen's commission of an "aggravated felony." Not only do these crimes render the noncitizen removable, but they also bar various forms of relief from removal. The Federal Sentencing Guidelines also include specific sentencing consequences for "aggravated felonies." The INA contains a definition of crimes categorized as "aggravated felonies." Circuits are split as to whether this aggravated felony definition includes state law drug felonies that would only be misdemeanors under federal criminal law.
Sarah Rispin of Akin Gump wrote a preview of the case for SCOTUS blog. Here is her intro:
In the first argument tomorrow, the Court will hear a pair of cases, No. 05-547, Lopez v. Gonzales, and No. 05-7664, Toledo-Flores v. United States, addressing the meaning of the phrase "any felony punishable under the [Federal] Controlled Substances Act." The phrase carries considerable significance because it is used to define the term "drug trafficking crime" in 18 U.S.C. § 924(c)(2), conviction for which counts as an "aggravated felony conviction" (thereby subjecting the defendant to more stringent penalties) under both the Immigration and Nationality Act (INA) and the federal Sentencing Guidelines. Robert Long of Covington & Burling will argue on behalf of petitioner Lopez, while Timothy Crooks of the Office of the Federal Public Defender for the Southern District of Texas will argue on behalf of petitioner Toledo-Flores. Deputy Solicitor General Edwin Kneedler, who has many years of experience in the SG's office, will argue on behalf of the United States and Alberto Gonzales. For the rest of the preview, click here.
For what it is worth, the New York Times sides with the noncitizens. Click here to check out the op/ed.
BREAKING NEWS For a transcript of the argument in the case, click here.
MORE BREAKING NEWS: Here are the thoughts about the oral argument of Lory Rosenberg, former Board of Immigration Appeals member, posted on the immprof listserve:
I think aspects of the argument went fairly well. There was some typical confusion. It always strikes me how interesting it is that a panel focuses on nuances that we, out here, immersed in the issues, may not have thought so important. Bob Long started out with an argument that other sections of 924 referred to state offenses, suggesting, therefore, that Congress had not intended to include state offenses at all. Kennedy spoke up first, and appeared friendly. Alito tried to say that the terms in 1101(a)(43)(B) were being used as in a broader context and not as terms of art. There appeared to be some argreement that the statute in question was ambiguous. (This may not be so appealing to Scalia and Thomas, but I believe that Stevens, Kennedy, Ginsburg and Breyer commented on its ambiguity). As we all know, under Chevron, deference then goes to the agency's position, assuming its reasonableness. Interestingly, Ginsburg seemed to believe that going to the agency position meant that Matter of Barrett would be given weight. But I think Barrett begs the question, doesn't it? Also, isn't the agency position what is being appealed in the petition -- which is the Matter of Salazar/Matter of Yanez position basically that overruled Matter of L-G(II) and Matter of K-V-D-? Along those lines, there was some dispute among the justices over whether "felony punishable under the CSA" in 924(c) needed to include "felony punishable [as a felony] under the CSA" to achieve the result advocated by the petitioners. Long made the argument, that the language "described in" in (a)(43)(B) limited the scope of offenses to felones punishable under the CSA. So I think that this decision may produce some decision on what "described in" means (which is applicable elsewhere). Several justices had a difficult time imagining that Congress could have intended that there would be disparate results depending on the state in which a defendant was charged with a possession offense. There was some back and forth on what "uniformity" meant and whether the constitutional guarantee was applicable (but nothing in depth and no one mentioned the effect of an aggravated felony on naturalization). The SG, Ed Kneedler insisted that Congress intentionally set up the statute to include these disparities. At one point during the SG's argument I actually thought that I heard a couple of the justices questioning with some surprise and concern the fact that there were other "aggravated felony" convictions that could be based on misdemeanor convictions. (The SG, Ed Kneedler, was pointing that out, e.g. theft, crime of violence, anything with at least a sentence of one year language, could be a misdemeanor). Manny Vargas heard this too and I am sure it is reflected in the transcripts. My personal impression of Alito was that he appeared to be smirking and was somewhat snide. Roberts was equally unengaging and addressed most of his comments to the issue of mootness, which is the core of the Toldeo-Flores case, since the defendant there has been deported while on supervised release. Tim Crooks did a good job with an uphill battle on a tough issue It appears that if they rule on mootness they may need to address the 2d circuit Hamdi case because Ginsburg opined that she thought it was addressing identical circumstances. I am reticent to hope, but it did strike me that there was little if any affirmative argument made from the bench that favored the interpretation that produced the disparate "Yanez" result we have at present, so perhaps there may be a slim majority for a narrow opinion.