January 13, 2007
Another Suit Against Local Law Ordinance
Business owners have filed suit against Farmers Branch saying they have been hurt by the Dallas suburb's push to stop apartments from renting to illegal immigrants and make English the city's official language.
It was the fourth suit filed against the city since the anti-illegal immigration measures passed in November.
Thirty-one named merchants contend the rental ban and English resolution have hurt their businesses by driving away Hispanic customers.
Their complaint, filed Thursday, calls the plaintiffs' businesses "the very life blood of Farmers Branch" and contends that the ordinance "has cut off the oxygen supply to that life blood: Latino and immigrant clientele." here.
The Washington Post ran a scathing editorial ("Unveiled Threats: A Bush appointee's crude gambit on detainees' legal rights) on January 12, 2007. It begins like this:
MOST AMERICANS understand that legal representation for the accused is one of the core principles of the American way. Not, it seems, Cully Stimson, deputy assistant secretary of defense for detainee affairs. In a repellent interview yesterday with Federal News Radio, Mr. Stimson brought up, unprompted, the number of major U.S. law firms that have helped represent detainees at Guantanamo Bay. "Actually you know I think the news story that you're really going to start seeing in the next couple of weeks is this: As a result of a FOIA [Freedom of Information Act] request through a major news organization, somebody asked, 'Who are the lawyers around this country representing detainees down there,' and you know what, it's shocking," he said.
Click here for the full editorial.
The editorial proceeds to quote Stimson as suggesting that corporate law firms are representing (either pro bono or for money) many of the detainees for unknown reasons and that their corporate clients would likely object when the information became public. What about the idea that all persons accused of wrongdoing and held in detention, deserve access to legal representation?
Postscript. The Pentagon disavowed Stimson's remarks suggesting companies boycott law firms that represent detainees at the U.S. military prison at Guantanamo Bay, Cuba. Click here for the NY Times story. Dan Kowalski wraps this story all up at (click here).
Immigration Law Prof Hits Broadway!
Fresh off the release of a hit CD, Law Professor Dan Kanstroom (Boston College) will be starring in "Conversations with Shakespeare" on Monday, January 15, 2007 at 7:30 at the Leonard Nimoy Thalia Theater, Symphony Space, 95th Street and Broadway, New York. Together with Cuban-born playwright Eduardo Machado (head of the graduate playwriting department at Columbia University), Dan will discuss the themes of “Deportation, Exile and Banishment.” Interspersed with the on-stage interviews will be a series of scenes from Shakespeare’s plays—portrayed by professional actors--that relate to these themes. Scene choices will include King Lear, The Merchant of Venice, Romeo and Juliet, The Tempest, Henry VI, part 2, Richard II, and Coriolanus. This is an on-going series that has previously featured Carol Gilligan, Michael Walzer, Drucilla Cornell, and others. Tickets may be purchased at: http://www.symphonyspace.org/genres/genrePage.php?genreId=4
January 12, 2007
Ninth Circuit Amicus Brief In Criminal Conviction Case
SSRN has published the "Brief by Amici Curiae The Immigrant Legal Resource Center; The Florence Immigrant and Refugee Rights Project; The Immigration Law Clinic, Rogers College of Law; Washington Legal Defender Association; and the National Immigration Project of the National Lawyers' Guild in Support of Petitioner, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (28 Feb. 2006)" by LYNN MARCUS (University of Arizona - James E. Rogers College of Law), VICKY DOBRIN (Dobrin & Han), HILARY HAN (Dobrin & Han), and LORY D. ROSENBERG (former Board of Immigration Appeals member). Click here for the full text.
This amicus curiae brief argues that under the logic of Leocal v. Ashcroft, 543 U.S. 1 (2004), and recent circuit court cases, it is clear that Congress intended the term "crime of violence" in 18 U.S.C. Section 16(a) to encompass a narrow array of offenses; the Petitioners' misdemeanor simple assault convictions - which lack an element of force against persons or property - are not among them. Crimes committed with a mens rea of recklessness lack such an element because the use of force requires intent. Also, the elements of injury and force are distinct because one can cause injury without employing force. Nor does the fact that the victim is a person protected by a jurisdiction's family laws place Petitioner's offenses within the definition of the term "crime of moral turpitude;" the latter term encompasses only crimes with an aspect of baseness or depravity that is lacking in the case of simple assault. Finally, amici urge the Ninth Circuit to establish that a federal court will only give effect to a criminal sentence to the extent that the sentence does not exceed the statutory maximum under the law of the sentencing jurisdiction.
NPR Story on Chinese Deportees
NPR has a story about China's refusal to take back thousands of its citizens who are being deported from the United States as illegal immigrants. The Chinese government says it is protesting American asylum laws, but now immigrants who have been told to leave America have no place to go. Click here to listen.
Farmers Branch Immigrant Ordinance Enjoined
A state district court judge has temporarily blocked the Dallas suburb of Farmers Branch from implementing a controversial ordinance banning apartment owners from leasing to illegal immigrants. The action Thursday came amid a flurry of legal activity involving the city ordinance that was scheduled to take effect Friday.
Judge Bruce Priddy of the 116th District Court issued the temporary restraining order in response to a request from resident Guillermo Ramos. Mr. Ramos sued the city in December, alleging the City Council violated the Texas Open Meetings Act by conducting all of its deliberations on the immigration ordinance behind closed doors, then voting before residents could see the text of the ordinance and comment on it.
A new suit also has been filed by local businesses challenging the ordinance and a companion resolution making English the city's official language have made Hispanics afraid to go to Farmers Branch and are hurting the merchants' businesses. The suit seeks damages for loss of revenue and future profits.
On Wednesday, representatives of the American Civil Liberties Union of Texas and the Mexican American Legal Defense and Educational Fund also petitioned a court for a temporary restraining order blocking the ordinance. The two civil rights groups have sued the city, saying the ordinance is unconstitutional. Marisol Perez, a staff attorney with the defense fund, said Thursday that the two groups were awaiting a hearing on the request but did not expect the federal court to issue a temporary restraining order since the state district court did.
Another suit involves three of the city's largest apartment complexes. It also charges that the ordinance is unconstitutional because it targets an ethnic group – Hispanics – and interferes with the ability of the apartment complexes to conduct business.
Click here for a blow-by-blow account of all the legal activity surrounding the ordinance.
Texas Governor Perry Defends Texas Law Allowing Resident Undocumented Immigrants to Pay In-State Fees for Public Colleges and Universities
The Houston Chronicle reports that Texas Gov. Rick Perry said that he will oppose efforts to repeal a law, which he signed six years ago, allowing in-state undocumented immihrant residents to pay in-state fees at state universities. "I'm for leaving the law like it is because I think it serves a good purpose," he said. Click here for the story and video.
We have agreed to a Blogger's Exchange with Beyond Borders. Check out the site by clicking here. Thanks to Conor Friedersdorf for initiating the exchange. He starts to discussion on the guest worker program. We will chime in soon.
Bush Administration to Ease Terrorism Exclusions in Refugee Determinations
AP reports that the Bush administration is shifting policy to allow foreigners who have aided armed groups not considered terrorists to seek asylum or resettle in the United States. Hundreds of foreigners already in the country - including some who have been held for months or years in detention - claim to have been forced to help violent groups. Many are fleeing violence from the groups they were forced to assist. Tens of thousands of others, living abroad in refugee camps and elsewhere, also would be affected by the plan to ease restrictions set after the Sept. 11, 2001, terrorist attacks. The applicants will have to show that they were forced to provide the support or did so "under duress" to be granted asylum or legal permanent residency. They must pass other intelligence and background checks as well. Human rights, refugee and conservative groups drew media attention to refugee cases affected by the anti-terrorism laws following Sept. 11. The USA Patriot Act and REAL ID law, for example, prohibited asylum for a Sri Lankan fisherman who paid a $500 ransom to the Liberation Tigers of Tamil Eelam who had kidnapped him. Click here for the full story.
Here is the official "Statement by Homeland Security Secretary Michael Chertoff ON THE INTENTION TO use DISCRETIONARY AUTHORITY for MATERIAL SUPPORT to terrorism" on which the AP report presumably was based:
The United States of America has a great legacy as a welcoming nation to legitimate refugee and asylum seekers from around the world. Indeed, America has traditionally welcomed more refugee and asylum seekers than any other nation in the world. The federal government has upheld that tradition while working hard to eliminate the risk of unintentionally admitting a potentially dangerous and fraudulent petitioner in a post-9/11 world. A select group of foreign nationals have been unable to pursue the protections provided by our refugee and asylum laws because they have been uniquely victimized by terrorist groups. This group as a whole does not represent a threat to our homeland security. I, therefore, will exercise my discretionary authority to permit consideration of applications for refugee status, asylum or adjustment of status from some who have provided material support to groups while under duress. I have also decided, in consultation with the Departments of State and Justice, to exercise my discretionary authority under the Immigration and Nationality Act to not apply material support to terrorism provisions to those seeking asylum or adjustment of status that have provided support to eight groups. They are: the Karen National Union and Karen National Liberation Army, Chin National Front and Chin National Army, Chin National League for Democracy, Kayan New Land Party, Arakan Liberation Party, Tibetan Mustangs, Cuban Alzados, and Karenni National Progressive Party. The material support to terrorism exemption will apply to individuals who do not represent a public safety or national security risk to the United States. In addition to exempting from the material support bar eligible individuals in these two categories, the federal government will also seek legislation from Congress to further expand our discretionary exemption authority. We are deeply committed to ensuring that those who deserve humanitarian relief from our immigration system receive it, and that America continues to be a beacon of hope and protection for the persecuted.
Immigrants in the Big Apple
Immigrants are arriving in America at a rate of one every 27 seconds, according to latest estimates from the U.S. Census Bureau. The number of foreigners who have settled in New York since 2000 exceeds half a million. "The level of diversity is unprecedented," says Prof. Marcelo Suarez-Orozco, co-director of immigration studies at NYU. "It has never before happened that one city encompasses the globe." In a special report, The New York Daily News talks to people from 100 countries, revealing why they moved to New York and what they love about the city they now call home. Click here to read what they have to say.
January 11, 2007
Pizza House Criticized for Accepting Pesos
A pizza chain has been hit with death threats and hate mail after offering to accept Mexican pesos, becoming another flashpoint in the nation's debate over immigrants.
"This is the United States of America, not the United States of Mexico," one e-mail read. "Quit catering to the damn illegal Mexicans," demanded another.
Dallas-based Pizza Patron said it was not trying to inject itself into a larger political debate about illegal immigration when it posted signs this week saying "Aceptamos pesos" — or "We accept pesos" — at its 59 stores across Texas, Colorado, Arizona, Nevada and California.
Pizza Patron spokesman Andy Gamm said the company was just trying to sell more pizza to its customers, 60 percent of whom are Hispanic.
Wal-Mart, H-E-B supermarkets and other American businesses in towns along the Mexican border accept pesos. And some busineses in New York and Minnesota communities along the northern border accept Canadian dollars. Click here.
The Brennan Memos: Plyler v. Doe
Today's Slate has an aricle by Jim Newton entitled "Brennan Dishes on His Colleagues." The article contains a disturbing discussion of the Supreme Court's conference on Plyler v. Doe, the case that concluded that undocumented noncitizen children have a constitutional right to public education. Newton writes:
In conference, as the case history notes, the justices squared off to their familiar positions: Brennan believed the Constitution extended equal protection to all people, including children of illegal immigrants. Marshall sided with him. Burger confusingly compared the right to an education with the right to receive welfare ("as if that was the issue," Brennan's history of the case notes grumpily), but White joined the chief justice. Blackmun and Powell joined Brennan's side. The most startling remarks, however, came from Rehnquist. He emphasized that many of the children demanding an education were not 5 or 6 years old but, rather, those who'd come to the country on their own. At conference Rehnquist referred to those illegal immigrants, shockingly, as "wetbacks."
Marshall had heard his share of slurs over the years—much of his career, after all, was in the practice of NAACP law in the Deep South, below what he called the "Smith and Wesson line." But to hear such an epithet in a conference of the U.S. Supreme Court was more than he could bear. Marshall exploded at Rehnquist, who lamely attempted to defend himself by saying in his part of the country the term wetbacks still had "currency," as Brennan recalled it....
The full Slate article - the third of a four-part series on Brennan - is here.
Hispanic leaders call for reform on immigration within 100 days
National Hispanic leaders are pressing House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Harry Reid (D-Nev.) to make immigration reform a top priority within the first 100 days of the new Congress, citing the large numbers of Hispanics who turned out to vote for Democrats in November. Several of the largest Hispanic advocacy groups in the country, the League of United Latin American Citizens, the Southwest Voter Registration Education Project and the Hispanic Federation, plan to stage a massive grassroots campaign to pressure House lawmakers to move quickly on immigration. They will team with America Votes, one of the nation's largest liberal voter-mobilization groups, to push reform.
For an article in The Hill, click here.
New Immigration Book
There's No Jose Here: Following the Hidden Lives of Mexican Immigrants by Gabriel Thompson 2007, Avalon Publishing Group, $14.95, www.nationbooks.org
From the back cover of the book:
Mexican immigration has become one of the most polarizing issues of Bush's second term and will remain a central topic in the coming years. Whereas Mexicans once had a sizable presence in a few select states like California and Texas, today the fastest growing populations are in places like North Carolina, Arkansas, Georgia, and Tennessee. Seemingly overnight, Americans across the country are finding their new neighbors to have names like Gonzalez, Paulino, Sosa, and Aguilar. Despite the intense passions that the immigration debate evokes, we remain largely ignorant about the actual lives behind the newspaper headlines and talk-show bluster. Why don't Mexicans just "play by the rules" and enter legally? How do they cope, living in a strange country among people that speak a language they can't understand? And after everything they have gone through, do they see immigration as a blessing, a curse, or something in between? There's No Jose Here answers such questions by giving voice to a group usually ignored: immigrants themselves. The central narrative follows the engaging figure of Enrique, a thirty-four-year-old livery cab driver who came to the United States illegally at the age of sixteen and has since seen his daughter poisoned by lead, his mother abandoned in Mexico by his father, his cousin murdered on the streets of Brooklyn, and his best friend deployed to Iraq. The result is a behind-the-scenes account of normally invisible Mexican immigrants that allows readers to witness the harrowing, inspiring, and complicated stories of people struggling to survive in a new and often hostile land. From the floors of hidden sweatshops in New York City to the impoverished rural villages of Mexico, Enrique and his family continue a seemingly endless search for economic opportunity and stability -- and in the process force us to take a hard look at the immigration drama as it plays out in the real world.
New Georgetown Immigration Law Journal Hot Off the Presses
The summer 2006 issue of the Georgetown Immigration Law Journal (vol. 20) has just been pubished. Here is the table of contents:
The Citizenship Dialectic, by Ediberto Román (Florida international)
Discretionary Deportation, by Gerald L. Neuman (Harvard)
Judicial Deference After United States v. Mead: How Streamlining Measures at the Board of Immigration Appeals May Transform Traditional Notions of Deference in Immigration Law, by Estella F. Chen
The Imperfect Legacy of Gomez v. INS: Using Social Perceptions to Adjudicate Social Group Claims, by Talia Inlender
LEGISLATIVE BRANCH: A House-Senate Standoff over Immigration Reform
EXECUTIVE BRANCH: ICE Establishes IMAGE Program
JUDICIAL BRANCH: A Recent Decision: Fernandez-Vargaz v. Gonzales
January 10, 2007
Courts Look to New Congress for Leadership on Immigration Reform
Chief Judge Mary M. Schroeder of the United States Court of Appeals for the Ninth Circuit today issued a statement welcoming the start of the 110th Congress and pledging assistance to lawmakers as they seek to address issues affecting the federal courts, particularly immigration reform. She said: "I very much look forward to working with the new Congress and its new leadership that includes fellow westerners, House Speaker Pelosi and Senate Majority Leader Reid. Immigration reform is a complex subject with major implications for the federal courts, particularly the Ninth Circuit where we have seen our administrative appellate caseload rise nearly 500 percent in the past six years. We are particularly concerned that federal legislation provide for adequate intermediate review of initial immigration judge decisions. It is important that Congress and the courts cooperatively ensure that new immigration law operates fairly and efficiently, without congestion and delay."
Click here for the press release.
New Immigration Articles
Salinas, Vicky J. Comment. You can be whatever you want to be when you grow up, unless your parents brought you to this country illegally: the struggle to grant in-state tuition to undocumented immigrant students. 43 Hous. L. Rev. 847-877 (2006).
Villagra, Hector O. Arizona's Proposition 200 and the supremacy of federal law: elements of law, politics, and faith. 2 Stan. J. C.R. & C.L. 295-331 (2006).
Symposium on Immigration Appeals and Judicial Review. Articles by Judge John T. Noonan, Jr., Carlos Ortiz Miranda, Edward R. Grant, John R.B. Palmer and Michael M. Hethmon. 55 Cath. U. L. Rev. 905-1058 (2006).
Those dangerous historians....
A recent encounter between a British citizen and the Atlanta police illustrate the ways in which violence can escalate in the face of cultural miscommunications.
Police say a British historian was handcuffed, thrown to the ground and jailed because he refused to obey a uniformed officer's order to use a crosswalk and wouldn't show identification.
The historian says he had no idea the upset young man was a police officer.
''Where I'm from, you don't associate young gentlemen in bomber jackets with the police. But he was extremely upset I had questioned his bona fides,'' said the historian, Felipe Fernandez-Armesto, a professor at Tufts University in Massachusetts and expert on colonial history.
More on Fernandez-Armesto's adventures is here. The encounter could be read to have broader significance in thinking about the more general --and more pervasive -- issue of law enforcement in immigrant communities.
Supreme Court Decides Illegal Re-Entry Case
In U.S. v. Resendiz-Ponce, the U.S. Supreme Court on Tuesday upheld the conviction of a man caught trying to enter the country illegally in a case that initially was seen as a test of whether a flawed indictment could violate a defendant's rights. But in an 8-1 opinion, the court said that the indictment of Juan Resendiz-Ponce itself was sound. Resendiz-Ponce, a Mexican national, sought to persuade the justices that there was a problem so serious in his indictment that it warranted reversing his conviction. Justice Antonin Scalia, the lone dissenter, agreed. Resendiz-Ponce was charged with attempting to enter the country illegally after he was arrested at the border crossing at San Luis on June 1, 2003. He presented his cousin's green card and driver's license to U.S. authorities. But the grand jury indictment that followed failed to set out any specific acts showing how he tried to enter the United States. The Ninth Circuit ruled that the omission was so serious that it violated Resendiz-Ponce's constitutional rights and required automatic reversal of the conviction. Deputy Solicitor General Michael Dreeben, however, told justices at oral argument that this error was harmless because Resendiz-Ponce received a fair trial at which a jury determined that the government proved beyond a reasonable doubt that he had displayed two false pieces of identification in an effort to enter the country.
The decision in U.S. v. Resendiz-Ponce can be found here, as well as Justice Scalia's dissent, can be found at scotus blog. Click here for the links.
January 9, 2007
ACLU FILES “RACIAL PROFILING” LAWSUIT AGAINST STATE POLICE FOR ILLEGAL DETENTION OF GUATEMALANS IN I-95 STOP
The Rhode Island ACLU today filed a federal lawsuit against the R.I. State Police, challenging the legality of the detention and transporting to immigration officials of fourteen people, all Guatemalans, who were stopped in a van on I-95 on July 11th after the driver changed lanes without using a turn signal. The lawsuit, filed by RI ACLU volunteer attorney V. Edward Formisano on behalf of eleven of the individuals, argues that the actions by the state police violated the state’s Racial Profiling Prevention Act, as well as the driver and passengers’ constitutional rights to be free from discrimination and from unreasonable searches and seizures. The lawsuit notes that the detention ensued even though Thomas Chabot, the state trooper who stopped the van, confirmed that the license and registration of driver Carlos Tamup were valid, and that Tamup had no criminal record. Chabot nonetheless proceeded to open the doors of the vehicle and, by utilizing Tamup as a translator, requested all the passengers to also provide identification. When some did not produce any ID, Chabot asked them if they possessed any documents demonstrating their U.S. citizenship, which none were able to produce. After some further delays, the trooper advised them that they would all be escorted to the Office of Immigration and Customs Enforcement in Providence. According to the complaint, Chabot instructed Tamup that if any passenger attempted to escape from the van en route to Providence, that passenger would be shot. For the full press release, click here.