November 1, 2008
Census Cooperated with DHS
Yesterday, Kevin Johnson reported on the profiling of Muslims by DHS in 2004. Karen A. Woodrow-Lafield, Ph.D. (KarenWLafield@cs.com) has this additional information:
In 2004, The New York Times (July 30) reported that in December 2003 the Census Bureau provided the Customs and Border Protection division of the Department of Homeland Security a set of detailed Census 2000 tabulations for Arab Americans by country of origin (Egyptian, Iraqi, Jordanian, Lebanese, Moroccan, Palestinian, Syrian, and two general categories, Arab/Arabic or Other Arab) for selected zip codes. The Electronic Privacy Information Center, a public interest research center focused on civil liberties, disclosed the data sharing to the New York Times after a Freedom of Information Act request, and there was subsequently considerable concern among parties interested in census issues. It was only in 2000 that the bureau had issued a formal apology for having issued statistical data used for Japanese-Americans’ internment in WWII.
This type of data sharing with another federal agency is entirely legal, but experts criticized the Census Bureau for not ascertaining that generally available statistical data were insufficient for the specific purposes for which DHS made the detailed data request. The DHS spokesperson indicated the data were to be used for non-law enforcement purposes to identify airports for educating Arab travelers about U.S. laws and regulations. This seems rather unlikely given that law enforcement/ border patrol constitutes so much of the CBP mission.
In addition, the Census Bureau provided tabulations on a non-fee basis which meant that the service was not subject to a full review by census officials with attention to guidelines for preparing special tabulations for outside agencies and groups that include considerations about how the data sharing will affect the bureau’s reputation, whether the data deal with “sensitive” populations, and whether the data is being requested by law enforcement agencies.
Reading about this ICE Operation Front Line I in October 2004, although CBP and ICE may have been proceeding independently in different directions in that one part of a federal agency is often unaware of another’s activities, and this might seem especially likely in that first chaotic year of DHS’ existence, I nevertheless am wondering whether the census tabulations for Arab-Americans were not used in some way to target residential areas of Arab-Americans for greater scrutiny. After all, the DHS data bases themselves should have been far more adequate for the stated purpose of obtaining the census tabulations—educational communications in airports with travelers to and from Arab countries. We do not know the nature, extent, or legitimacy of data mining analyses involved with ICE headquarters’ analyses of their databases, National Security Entry-Exit Registration System (NSEERS), Student Exchange Information System (SEVIS), United States Visitor and Immigrant Status Information System (US-VISIT). Note that ICE has not responded to an FOIA request filed in 2006 about use of NSEERS in immigration enforcement efforts.
An October (November) Surprise? Obama Aunt Asylum Seeker?
CNN reports that "A member of Barack Obama's Kenyan family living in the United States is facing a possible immigration issue: the Associated Press reports that an aunt he speaks about in his memoirs is living in the United States illegally. The AP says she remain in government housing in Boston, even though an immigration judge denied her request for asylum four years ago. . . . CNN has not been able to independently verify her immigration status."
For the AP report that broke this story, click here.
UPDATE This is one of the hottest stories today in the blogosphere, with various concerns being raised about a posible governmental "leak" of this information to affect the election. Click here, here, here, here, and here One McCain campaign official even has claimed that Senator Obama is not a U.S. citizen (and thus is ineligible for the Presidency).
UPDATE After the election, AP reported that Aunt Obama is fighting her removal from the United States.
October 31, 2008
N.Y. Times: DHS Profiled Muslims in 2004
Can anyone be surprised, much less shocked, by the following report?
The N.Y. Times reports that "At the time of the 2004 operation, the immigration agency said publicly that it was tracking leads in an effort to disrupt potential terrorism plots, but emphasized that its investigations were being conducted “without regard to race, ethnicity or religion.” But the records showed that 79 percent of the suspects were from Muslim-majority countries, according to an analysis by students at the National Litigation Project at Yale Law School (Download frontline1.pdf), who obtained the records, as did the American-Arab Anti-Discrimination Committee. Each group sued for the records under the Freedom of Information Act, and both say the operation showed that the government was using ethnic profiling to identify terrorism suspects."
A Postville Lament
Lyrics about the Postville raid from Leslie Holman
A Postville Lament
Mama’n Papa they rolled outta bed
Had to get to the slaughter’n station
What they soon found out was they’d been sold out
ICE had started its “investigation.”
It’s against the law
It was against the law
What Postville saw
It was against the law
Judge Reade looked down and spit on the ground
Every time a bond was mentioned
The manu’l a ploy just to get those boys
and stick em in a barn of detention
You’ll try it my way!
They won’t know what we’re saying
Got seven days, I’m giving no time
And I won’t be fair
Goodbye to justice and constitution
Holding Juan and Julio out in a cow barn
Holding Juan and Julio out in a cow barn
Oh, In a couple of days they would’ve
Put em away
But Erik let the story leak
And when the gallant Rockne
Dared to say not me
It should’ve been on the cover of Newsweek
If I had my way
When H.R. they’re trying
They’ll now delay, Just taking their time
Cuz its only fair
Goodbye to justice and constitution
Rubushkin and Althouse now in the cow barn
Reade and Dummermuth next in the cow barn.
Then no one else in a f#@ing cow barn.
The Grapes of Wrath: 2008
Chris Macias of the Sacramento Bee spent a day picking grapes with a crew near Lodi, and wrote about the experience. It is worth reading!
Election Day: A Special Opportunity
This account of early voting incident was sent to me by a friend. I ask all of you who are eligible voters (and your friends and relatives who are eligible voters): what will you be able to tell your grandchildren about your decision on election day? I'll take "Mike the Race Car Fan" over "Joe the Plumber" any day.
Upon arriving at the Hamilton County Board of Elections in Cincinnati to vote early today I happened upon some friends of my mother's - three small, elderly Jewish women. They were quite upset as they were being refused admitance to the polling location due to their Obama T-Shirts, hats and buttons. Apparently you cannot wear Obama/McCain gear into polling locations here in Ohio .... They were practically on the verge of tears.
After a minute or two of this a huge man (6'5", 300 lbs easy) wearing a Dale Earnhardt jacket and Bengals cap left the voting line, came up to us and introduced himself as Mike. He told us he had overheard our conversation and asked if the ladies would like to borrow his jacket to put over their t-shirts so they could go in and vote. The ladies quickly agreed. As long as I live I will never forget the image of these 80-plus-year-old Jewish ladies walking into the polling location wearing a huge Dale Earnhardt racing jacket that came over their hands and down to their knees!
Mike patiently waited for each woman to cast their vote, accepted their many thanks and then got back in line (I saved him a place while he was helping out the ladies). When Mike got back in line I asked him if he was an Obama supporter. He said that he was not, but that he couldn't stand to see those ladies so upset. I thanked him for being a gentleman in a time of bitter partisanship and wished him well.
After I voted I walked out to the street to find my mother's friends surrounding our new friend Mike - they were laughing and having a great time. I joined them and soon learned that Mike had changed his mind in the polling booth and ended up voting for Obama. When I asked him why he changed his mind at the last minute, he explained that while he was waiting for his jacket he got into a conversation with one of the ladies who had explained how the Jewish community, and she, had worked side by side with the black community during the civil rights movements of the '60s, and that this vote was the culmination of those personal and community efforts so many years ago. That this election for her was more than just a vote ... but a chance at history.
Mike looked at me and said, "Obama's going to win, and I didn't want to tell my grandchildren some day that I had an opportunity to vote for the first black president, but I missed my chance at history and voted for the other guy."
Thank you for everything you have done for this campaign, now please get out and vote (and help get the vote out)! Best, N
Border Patrol Officer on trial for Murder
While I have met many decent border patrol officers, some or ruthless and act with impunity. Brenda Norrell blogs on one case:
US Border Patrol agent Nicholas Corbett is on trial for the murder of Francisco Javier Dominguez Rivera, 22, from Morelia, Mexico. Eyewitnesses said the border agent shot the youth in cold blood, without provocation.
At a shrine in front of the courthouse, family members and supporters are gathered to remember the youth and speak of the impunity that US Border Agents are operating under, as they murder people of Mexico. On Wednesday, Roy Warden, who previously burned Mexican flags with the Minutemen at human rights marches here, gathered with others in front of the courthouse to harass and yell at the family and their supporters.
This is not the first time a person from Mexico has been murdered in cold blood by US Border Patrol agents at the US/Mexico border. This time, there were witnesses when Border Agent Corbett shot the youth in the chest at close range on Jan. 12, 2007, in the Sonoran Desert near Douglas, Arizona. Family and supporters said there is a poisoned atmosphere of racism in the United States.
"We are talking about a poisoned atmosphere against immigrants," Isabel Garcia, cochair of Derechos Humanos, said during an interview outside the federal courthouse. Garcia compared today's racism toward migrants with the pre-Civil Rights era in the south. Garcia said border agents are murdering and getting away with murder. Click here for the link to the blog.
DHS to focus on Immigrants in Jails
DHS is going to start lookingfor undocumented immigrants in jails across the country. Chris Strohm Congressional Daily:
The Homeland Security Department will launch a program Monday aimed at identifying illegal immigrants held in county and city jails across the country, but critics worry that nonthreatening individuals could be ensnarled in confusing deportation proceedings or denied legal protections.
With an infusion of funding from the Congress, the department's Immigration and Customs Enforcement agency has started an aggressive effort to find illegal immigrants who are incarcerated and enter them into deportation proceedings. ICE says its initial focus is on finding and removing illegal immigrants who have been convicted of violent crimes or those convicted of major drug offenses.
The program will allow local law enforcement agencies to automatically compare the fingerprints of their prisoners against FBI criminal databases and Homeland Security immigration databases. When law enforcement officials run a check on fingerprints against the FBI's Integrated Automated Fingerprint Identification System, a check will automatically be done against Homeland Security's Automated Biometric Identification System.
The program will begin with the Harris County Sheriff's Office in Texas, with the goal of being expanded to about 50 other local law enforcement agencies by the spring. Click here for the rest of the story.
October 30, 2008
Letter from Professor Michael Olivas et al. to the Texas Attorney General On the Legality of Texas' Law Providng In-State Tuition to Undocumeted Students
October 30, 2008
Opinion Committee, AGO
Texas Attorney General
PO Box 12548
Austin, TX 78711-2548
[ fax 512-472-6538]
Dear Ms. Fuller,
We are writing in our personal capacity as immigration professors and law teachers, who have both studied and litigated immigration matters over the years. We understand that Rep. Leo Berman has requested an AGO from your office, based upon the recent Martinez v. Regents litigation that is in its early stages in California. [Whether, under the federal Constitution, the state of Texas may permit undocumented persons to receive the benefit of instate tuition at Texas state colleges and universities: http://www.oag.state.tx.us/opinions/opinions/50abbott/rq/2008/pdf/RQ0742GA.pdf ] We have organized our response along three lines, including matters of res judicata/ripeness/finality, differences in the TX and CA statutes, and the Martinez v. Regents appeals panel reasoning.
First: Res Judicata/ripeness/finality: The Martinez v. Regents matter is not resolved in California, so any response is premature. The CA Supreme Court has not yet accepted the appeal, and there is still the remand to the trial court. In any event, no response by TX AGO, occasioned by this one preliminary decision, is warranted, especially when the CA case cited by Rep. Berman is not resolved.
Second: In response to a North Carolina request, Homeland Security/ U.S. Immigration and Customs Enforcement (DHS/ICE) has issued a letter saying that federal law does not prohibit the admission of undocumented aliens to post-secondary institutions and that individual states or institutions are free to develop policies concerning such admissions so long as federal immigration status standards are used to classify alien applicants: http://www.nacua.org/documents/AdmissionUndocAlien072008.pdf (July 28, 2008). This letter alone shows that the CA court got it wrong.
Third: Even if an AGO were warranted, the decision in Martinez v. Regents is wrong on both statutory grounds and constitutional analysis: it misconstrues the term “benefit” under federal law, misapplies the two federal court cases that have construed the statutes in question (both in effect upheld the statutes, one allowing a state to extend residency status [Day, in Kansas] and one allowing a state to withhold residency status [Merten, in Virginia], and fails to cite the many state AGO’s and scholarly articles on the subject—while citing a page in the congressional hearings record and a student note in favor of its reasoning. Because that opinion is still on appeal, we respond to the various issues it raises, but have not addressed the opinion point by point.
States That Allow Undocumented Students to Gain Resident Tuition Status (by Statute):
Texas, H.B. 1403, 77th. Leg., Reg. Sess. (Tex. 2001), amended by S.B. 1528, (Tex. 2005)
California, A.B. 540, 2001-02 Cal. Sess. (Cal. 2001)
Utah, H.B. 144, 54th Leg., Gen. Sess. (Utah 2002)
New York, S. B. 7784, 225th Leg., 2001 NY Sess. (NY 2002)
Washington, H.B. 1079, 58th Leg., Reg. Sess. (Wash. 2003)
Oklahoma, S.B. 596, 49th Leg., 1st Sess. (OK 2003) [rescinded, 2007] +
Illinois, H.B. 60, 93rd Leg., Reg. Sess. (Ill. 2003)
Kansas, K.S.A.76-731a (KS 2004)
Nebraska, LB 239 (enacted over veto, April 13, 2006)
New Mexico, N.M.S.A. 1978, Ch. 348, Sec. 21-1-1.2 [47th Leg. Sess. (2005)]
+ The Oklahoma Taxpayer and Citizen Protection Act of 2007 (HB 1804) repealed the 2003 provision for according residency tuition and grants to eligible undocumented students, although the actual language of the bill, signed into law in May, 2007, grandfathered in those students already eligible and enrolled.
First, as this is a matter of statutory interpretation, it is important to start with the specific statutes addressed in the litigation, and which undergird the legislation drafted in the various states.
IIRIRA, CHAPTER 14--RESTRICTING WELFARE AND PUBLIC BENEFITS FOR ALIENS
§ 1621. Aliens who are not qualified aliens or nonimmigrants ineligible for State and local public benefits
(a) In general
Notwithstanding any other provision of law and except as provided in subsections (b) and (d) of this section, an alien who is not --
(1) a qualified alien (as defined in section 1641 of this title),
(2) a nonimmigrant under the Immigration and Nationality Act, or
(3) an alien who is paroled into the United States under section 212(d)(5) of such Act for less than one year,
is not eligible for any State or local public benefit (as defined in subsection (c) of this section).
Subsection (a) of this section shall not apply with respect to the following State or local public benefits:
(1) Assistance for health care items and services that are necessary for the treatment of an emergency medical condition (as defined in section 1396b (v) (3) of Title 42) of the alien involved and are not related to an organ transplant procedure.
(2) Short-term, non-cash, in-kind emergency disaster relief.
(3) Public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease.
(4) Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the Attorney General, in the Attorney General's sole and unreviewable discretion after consultation with appropriate Federal agencies and departments, which (A) deliver in-kind services at the community level, including through public or private nonprofit agencies; (B) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and (C) are necessary for the protection of life or safety.
(c) ‘State or local public benefit‘ defined
(1) Except as provided in paragraphs (2) and (3), for purposes of this subchapter the term ‘State or local public benefit‘ means --
(A) any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government; and
(B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.
(2) Such term shall not apply --
(A) to any contract, professional license, or commercial license for a nonimmigrant whose visa for entry is related to such employment in the United States, or to a citizen of a freely associated state, if section 141 of the applicable compact of free association approved in Public Law 99-239 or 99-758 (or a successor provision) is in effect;
(B) with respect to benefits for an alien who as a work authorized nonimmigrant or as an alien lawfully admitted for permanent residence under the Immigration and Nationality Act qualified for such benefits and for whom the United States under reciprocal treaty agreements is required to pay benefits, as determined by the Secretary of State, after consultation with the Attorney General; or
(C) to the issuance of a professional license to, or the renewal of a professional license by, a foreign national not physically present in the United States.
(3) Such term does not include any Federal public benefit under section 1611(c) of this title.
(d) State authority to provide for eligibility of illegal aliens for State and local public benefits
A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.
§ 1623. Limitation on eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education benefits
(a) In general
Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.
(b) Effective date
This section shall apply to benefits provided on or after July 1, 1998.
Our reading follows this reasoning: the word “unless” in Section 1623 can only mean that Congress enacted a condition precedent for states enacting rules in this area; the word “benefit” is defined in Section 1621 in a way that makes it clear that Congress intended it as a “monetary benefit,” whereas the determination of residency is a status benefit. Section 1621 says explicitly that states may provide this benefit only if they act to do so after August 22, 1996. Taken together, these provisions form an interlocking logic that points toward only one reasonable conclusion: that federal allows states to confer (or, not to confer) residency status upon the undocumented in their public postsecondary institutions. No other reading makes any sense.
First, in-state residency is entirely a state-determined status. There are no federal funds tied to this status, as opposed to, for example, federal highway programs, where acceptance of the dollars obligates a state to abide by federal speed limits. On the one occasion when this jurisdictional matter was considered by the U.S. Supreme Court, in the Maryland case of Moreno v. Elkins, where the issue was whether G-4 non-immigrants could establish postsecondary residency in the state for in-state tuition purposes, the Court certified this exact question to the Maryland State Court of Appeals. The Maryland State Court of Appeals held that G-4 aliens were not precluded from establishing domicile, and the U.S. Supreme Court then deferred to this finding, and adopted it into its final ruling on the issue, in Toll v. Moreno. Had state residency been a matter of federal law, the U.S. Supreme Court would have decided the issue itself; but instead, it left the interpretation and determination to a state court. While Toll concerned non-immigrants rather than the undocumented, we believe it is instructive on the issue of delegation as well.
The provisions of the 1996 federal statute do not preclude the ability of states to enact residency statutes for the undocumented. Section 505, 8 U.S.C. § 1623 reads:
[A]n alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a state (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.
Congress does not have the authority to regulate purely state classifications, and the Maryland case established this in the area of postsecondary residency/domicile issues. But even if this were not true and if Congress did have such authority, section 1623 would not preclude any state from enacting undocumented student legislation, due to the word “unless.” A flat bar would not include such a modifier. The only way to read this language is: State A cannot give any more consideration to an undocumented student than it can give to a nonresident student from state B. For example, Kansas could not enact a plan to extend resident status to undocumented students after they had resided in the state for twelve months, and then accord that same status to U.S. citizens or permanent residents from Missouri or Nebraska after eighteen months of such residence. No state plan does this; indeed, several of the plans require three years of residency for the undocumented, as well as state high school attendance--neither of which is required for citizen non-residents. New Mexico's 2005 statute is the only statute that accords full participation after a mere twelve months. As such, it does not favor the undocumented over other nonresident applicants. This is the only plausible reading of section 1623. The CA Appeals Court panel thus misconstrues both the immigration dimensions and the actual operations of residency determinations.
In section 1623, the term “benefit” refers to dollars (“amount, duration, and scope”). However, the “benefit” actually being conferred by residency statutes is the right to be considered for in-state resident status. This is a non-monetary classification, and this definition lends support to our reading of the statute. Congress has enacted a separate program for federal financial aid, which limits eligibility to certain classes of aliens, and which does not extend to the undocumented.
Moreover, 1621(c) must be read to enable states to determine residency reclassification. That provision reads, in pertinent part: ‘[An undocumented] alien . . . is not eligible for any State or local public benefit (as defined in subsection (c) of this section.’ But a more careful reading of subsection (c) confirms our interpretation, by referencing payments. It prohibits ‘any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.’ Thus, the “benefit” of being reclassified as a resident student in a state does not trigger any of the prohibitions. Subsection (1)(B)'s reference to “postsecondary education” is modified by “or any other similar benefit for which payments or assistance are provided . . . by an agency of a State or local government or by appropriated funds of a State or local government.” This clearly indicates that what is proscribed is money or appropriated funds (arguably financial aid or grants), but not the status benefits confirmed by the right to declare state residency. In classic residency determinations, such as these, no money or proscribed appropriated funds are in play.
Further, subsection (d) provides that states may provide otherwise-prohibited public benefits ‘only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.’ This must allow states to do as I believe they may do. Beginning with Texas, ironically the state where Plyler v. Doe originated twenty-five years earlier, a number of states have enacted statutes to allow these few students-- who have personally broken no law--to enroll in college.
The Kansas provision allowed undocumented public college applicants in the state to establish that they had attended the state’s public school for three years and graduated. In an unusual development, the Kansas Attorney General declined to have his office argue the defense and instead hired local private counsel to undertake defense of the statute. (One of the signatories served as the Kansas expert witness in this litigation.) In July 2004, the federal district judge found for the state by determining that the plaintiff students had no standing to bring the case, since they had not been denied any benefit or received any harm by the state's practice.
District Judge Richard D. Rogers denied standing to the plaintiffs, and after oral arguments in Fall, 2006, this decision was upheld by the Tenth Circuit, and the cert petition was denied by the U.S. Supreme Court. The judge got this formulation exactly right, although he might have added that both the United States Congress and the Kansas legislature had done exactly this, by means of federal law and K.S.A. section 76-731a. In the complex calculus concerning the state status of in-state residency to the undocumented, if Merten can be law in Virginia, then Day must prevail in Kansas. The pneumatics of this policy are that states are allowed to deny the status and enact a policy not to enroll the undocumented or accord them the lower tuition; symmetrically, they may also do so. We believe that the CA Supreme Court could still hold that this matter is moot, as the appeals court finessed the issue of standing. As was the case in Kansas, one student gaining in-state status harms no other student.
In May, 2005, the Texas Legislature acted to revise its statute, broadening it slightly to address some of the technical problems that had arisen under the first statute. In the meantime, thousands of undocumented Texas students have enrolled under the provision, as they have in other states that have enacted policies under IIRIRA.
Various state attorneys general have issued AGO’s on this very issue, and may be useful. For example, the AG in Nevada, New Mexico, and several other states have concluded that the undocumented may establish domicile in their state, and may attend public colleges—as DHS has opined. As a recent example, the Arkansas AG has responded that the undocumented could enroll in that state’s public colleges: http://ag.arkansas.gov/opinions/docs/2008-109.pdf (September 10, 2008).
On this issue, the Texas case Plyler v. Doe should again be useful, as in its footnote 22:
“Appellant School District sought at oral argument to characterize the alienage classification contained in § 21.031 as simply a test of residence. We are unable to uphold § 21.031 on that basis. Appellants conceded that if, for example, a Virginian or a legally admitted Mexican citizen entered Tyler with his school-age children, intending to remain only six months, those children would be viewed as residents entitled to attend Tyler schools. Tr. of Oral Arg. 31-32. It is thus clear that Tyler's residence argument amounts to nothing more than the assertion that illegal entry, without more, prevents a person from becoming a resident for purposes of enrolling his children in the public schools. A State may not, however, accomplish what would otherwise be prohibited by the Equal Protection Clause, merely by defining a disfavored group as nonresident. And illegal entry into the country would not, under traditional criteria, bar a person from obtaining domicile within a State. [Emphasis added] C. Bouvé, Exclusion and Expulsion of Aliens in the United States 340 (1912). Appellants have not shown that the families of undocumented children do not comply with the established standards by which the State historically tests residence. Apart from the alienage limitation, § 21.031(b) requires a school district to provide education only to resident children. The school districts of the State are as free to apply to undocumented children established criteria for determining residence as they are to apply those criteria to any other child who seeks admission.”
In summary, there are good reasons not to issue an AGO while the referenced case is still in its early stages. By if you decide to issue one, we believe that the clear answer is that the Texas statute is constitutional under state law and federal law analyses. Moreover, the DHS has clearly indicated that states may do as Texas and California have done. Finally, there is simply no other reasonable way to read this statute other than the one we urge. If we may be of further assistance, please feel free to call upon us, through Professor Michael A. Olivas. (Of course, this is undertaken as our personal opinions, and should not be construed as representing our home institutions.)
/s/ Michael A. Olivas
Michael A. Olivas
University of Houston Law Center
100 Law Center
Houston, TX 77204-6060
Massachusetts Law Reform Institute
M. Isabel Medina
Loyola University New Orleans College of Law
University of Nevada Las Vegas
Doris Marie Provine
Arizona State University
University of Texas School of Law
University of California Los Angeles
The Never Ending Postville Case! Former CEO Indicted
Just when I thought it was safe, the Postville raid case comes back to the news. The Iowa Independent reports today that "Federal prosecutors have arrested Sholom Rubashkin, former chief executive officer and vice president at Agriprocessors and son of company founder Aaron Rubashkin, on a criminal complaint that alleges the man conspired in immigration-related offenses."
Remember Foreign-Born Veterans of U.S. Armed Forces on Veterans Day
As the United States prepares to commemorate Veterans Day on Nov. 11, the Migration Policy Institute (MPI) is releasing an analysis of a sometimes overlooked group of U.S. armed forces veterans: those born in other countries. As the MPI Fact Sheet shows, there are over 644,000 foreign-born veterans of the U.S. armed forces, accounting for nearly 3 percent of all surviving U.S. veterans. This figure does not include those currently serving in the military. MPI analyzed U.S. Census Bureau data from the recently released 2007 American Community Survey to produce this demographic snapshot of foreign-born veterans, including their country or region of birth, current state of residence and periods of service. The analysis shows that most foreign-born U.S. veterans migrated from European or Latin American countries. The countries where the highest numbers of U.S. immigrant veterans were born were the Philippines -- representing 12 percent of foreign-born veterans -- and Mexico, birthplace to 11 percent. The Fact Sheet is available online at www.migrationpolicy.org/pubs/FS22_Veterans_103008.pdf
For information on the foreign born currently serving in the U.S. military, see the Migration Information Source article "Immigrants in the U.S. Armed Forces" by MPI Policy Analyst Jeanne Batalova at: www.migrationinformation.org/USFocus/display.cfm?ID=683
October 29, 2008
New Report on "The New American Electorate" predicts the Return of Immigration Reform Post-Election
What a tremendous difference one year can make. Only 12 months ago, many Washington-centered pundits and media myth-makers predicted that immigration would be among the hot issues for US voters in the 2008 elections. In fact, as the US presidential campaign moved beyond the primaries, immigration was decidedly consigned to the rear of the publicly-debated agenda, at least in English-language media.
Yet in a largely unnoticed way, immigration could well prove the determinant issue in 2008, especially if the race defies the polls and tightens at the end between Democrat Barack Obama and Republican John McCain. A new study prepared for the Washington D.C.-based Immigration Policy Center (IPC), a non-profit immigrant advocacy group, outlines the potential power immigrant voters could wield in elections this year and beyond. According to the report authored by Rob Paral and Associates, 'The New American Electorate,' naturalized citizens and their children constituted nearly one in nine registered US voters by 2006. For the full story, click here.
Video on History, Politics and Challenges of Immigration
For an interesting video from GOOD video exploring the history, politics, and challenges of immigration, click here.
Haitian Death Squad Leader Sentenced
Congratulations to the Center on Justice and Accountability for their work on this case.
Dear Friends of CJA:
Today, Emmanuel "Toto" Constant, a CJA defendant found liable for torture, attempted extrajudicial killing and crimes against humanity as the leader of Haiti's notorious death squad FRAPH (Revolutionary Front for the Advancement of the Haitian People), was sentenced to 12 to 37 years in prison for his role in a criminal mortgage fraud scheme in New York.
The fact that Constant will now serve between 12 and 37 years in prison is a direct result of CJA and our allies bringing Constant's role as a human rights abuser to the court's attention. The judge specifically mentioned Constant's role as a human rights abuser at sentencing.
In May 2007, CJA and co-counsel the Center for Constitutional Rights (CCR) intervened in the mortgage fraud case when CJA learned that attorneys from the Department of Homeland Security and the Office of the New York State Attorney General's office were going to let Constant plead to one to three years and receive credit for time served in order to expedite his deportation to Haiti. We felt strongly that Constant's role as a human rights abuser should be brought to the court's attention and that he should not be deported to Haiti where his presence would likely further destabilize the country.
CJA and CCR worked quickly to submit a series of letters, affidavits and testimony to the court which detailed Constant's record of human rights abusers as well as information about problems in the Haitian judicial system. Based in part on these submissions, the judge threw out the plea agreement stating, " the [human rights] allegations, if true, are heinous, and the court cannot in good conscience consent to the.. negotiated sentence ...[or] .. time served, as that would be a travesty."
Constant decided to go to trial rather than plead guilty to a higher sentence; on July 25th he was found guilty of all six felony counts against him.
Constant's sentencing is a huge victory for the thousands of victims terrorized by FRAPH and for our ongoing effort to ensure that the U.S. is not a safe haven for human rights abusers. Finally, CJA would like to thank the New York Attorney General's office for their role in bringing Constant to justice.
Hate Crimes Against Latinos at New Record Levels
Last year, the FBI Hate Crimes Statistics Report found that crimes motivated by anti-Hispanic bias had risen dramatically over the past few years. This year’s updated report finds that anti-Latino hate crime incidents continue to rise, up 40 percent since 2003. Read on.
LA City Council Ponders Special Order 40
The tragic killing of a young African American teen last spring in Los Angeles provoked much talk about the Los Angeles Police Department Special Order 40, which limits police power to inquire into citizenship status of witnesses, victims, and suspects. Other cities, such as San Francisco, have seen similar controversies over law enforcement policies toward immigrants.
Kristina Campbell, staff attorney for the Mexican American Legal Defense & Educational Fund, submitted this report on the Los Angeles City Council's recent hearing on Special Order 40:
On October 27, the Public Safety Committee of the Los Angeles City Council held a hearing regarding Councilman Dennis Zine’s proposed amendment to LAPD Special Order 40. Special Order 40 is a policy enacted by the LAPD in 1979 which states that it is the official policy of the LAPD that its officers not enforce federal immigration laws. Although the policy of the LAPD has always been to cooperate with federal immigration authorities in the course of enforcing state and local law when necessary, the department also recognizes that it is imperative that members of the community not be afraid to contact local law enforcement because of fear of repercussions related to immigration status. Thus, Special Order 40 was issued nearly 30 years ago as the official policy of the LAPD, stating that department officers do not have the authority to enforce federal immigration laws in the course of their local law enforcement duties.
In April 2008, Councilman Zine proposed an amendment to Special Order 40, which if adopted would have required the LAPD to verify the immigration status of “known gang members” and to place an immigration hold on such persons until they can be transferred into ICE custody. This amendment was offered by Councilman Zine in response to the tragic death of Jamiel Shaw, a promising young man who was allegedly murdered by an unlawfully present gang member mere hours after his release from the LA County Jail on another criminal offense. Although the individual who allegedly murdered Mr. Shaw was in the custody of the LA County Sheriff – not the LAPD – and Special Order 40 had no bearing on the policies that led to his release, his death precipitated a call from members of the community to either repeal or modify Special Order 40. Thus, Councilman Zine offered his amendment, which was opposed by many civil rights groups on the basis that in addition to not having jurisdiction to enforce federal immigration law, the LAPD would inevitably engage in racial profiling if it were required to determine the immigration status of “known gang members” in the course of routine criminal investigations and that community trust and effective policing would be undermined with such a policy.
The hearing held by the Public Safety Committee on October 27 featured presentations from many LAPD officials on the efficacy and purpose of Special Order 40, including Police Commissioner Andrea Ordin, Deputy Chief Sergio Diaz, and former Police Chief Daryl Gates. The officials made it clear that Special Order 40 does not prohibit the LAPD from working with ICE when appropriate, and that the department is in the process of embarking on a large-scale effort to train all officers regarding how to properly and uniformly enforce Special Order 40. Councilman Zine also repeatedly stated that the purpose of the hearing in front of the Public Safety Committee was to clarify the widespread misunderstanding of what Special Order 40 does and does not authorize for both the LAPD and the general public so that everyone understands exactly what the department policy is going forward.
The hearing concluded with the Committee delaying a vote on Councilman Zine’s proposed amendment, and directing the LAPD to prepare a report for the City Council regarding its plans to train officers regarding Special Order 40. The Committee also directed the LAPD to include in its report an explanation of how the department communicates with the Sheriff’s Office and County officials regarding the handling of criminal suspects who are believed to be undocumented immigrants, and stated that the Committee would like to hold another hearing in the future in which the Sheriff’s Office is available to offer testimony.
For an LA Times story about the City Council meeting, click here.
October 28, 2008
Resources on Immigrant Eligibility for Driver's Licenses.
The National Immigration Law Center has posted some helpful resources on immigrant eligibility for driver's licenses, including:
1. Three Years Later: A Primer on REAL ID This primer, prepared by the Center for Democracy and Technology, is presented in three parts: (1) The REAL ID Act Repealed the Promising Negotiated Rulemaking Process; (2) REAL ID Poses Serious Privacy and Security Risks; and (3) Congress Must Act to Address the Problems With REAL ID. (Link posted 9/10/08).
2. Overview of States' Driver's License Requirements Updated table posted 10/16/08.
Immigration officials held U.S. citizen for two weeks
This happens frequently enough that it is not all that newsworthy but the L.A. Times reports that "Federal authorities have released a Los Angeles man from immigration detention after acknowledging that he is a U.S. citizen." Didn't this kind of thing used to happen in the oold Soviet Union?
Former U.S. Attorney General, Senior Justice Officials And Top Military Officers Urge Supreme Court To Review Indefinite Detention Case
An ACLU press release announces that "Former U.S. Attorney General, Senior Justice Officials And Top Military Officers Urge Supreme Court To Review Indefinite Detention Case "Former United States Attorney General Janet Reno, Former FBI Director William Sessions, Major General Antonio M. Taguba and other former government and military officials today are joining the American Civil Liberties Union in urging the U.S. Supreme Court to review the president's authority to indefinitely imprison a legal resident of the U.S. without charge or trial. Several former top government and military leaders are signing on to friend-of-the-court briefs in the ACLU case of Ali Saleh Kahlah al-Marri, who has been detained in solitary confinement at a Navy brig in South Carolina since June 2003."