January 10, 2009
Massey: Economic Development in Mexico Would Address Migration Concerns
"If the money devoted to U.S. border enforcement were instead channeled into structural adjustment in Mexico, as was done by the EU for Spain, unauthorized migration would likely disappear as a significant demographic and political issue in North America. This assertion is not a matter of ideological belief or airy theorizing; it is based on authoritative economic measurements and real-world experience."
Latinos Recall Pattern of Attacks Before Marcelo Lucero Killing
The N.Y Times had a follow-up story on the hate murder last November of Marcelo Lucero, an Ecudoran immigrant on Long Island (Click here to see the indicrtment.). "The attacks were such an established pastime that the youths, who have pleaded not guilty, had a casual and derogatory term for it, `beaner hopping.'” One of the youths told the authorities, “I don’t go out doing this very often, maybe once a week.”
Latinos in Patchogue, N.Y. report that regular harassment, muggings and assaults have had them living in fear — "11 men told The New York Times of 13 attacks, nine of them in the past two years."
Food for Thought for the Obama Administration on Immigration Reform: Do Not Delay!
In an interview earlier this week with syndicated columnist Cal Thomas, President Bush mentioned "I probably, in retrospect, should have pushed immigration reform right after the 2004 election and not Social Security reform." "[I]f I had to do it again, I probably would have run the immigration policy first, as a part of a border security/guest worker/compassionate campaign."
Immigration reform was considered by Congress and promoted by the President in 2006 and 2007. But by that time, the President lacked the clout to secure passage of immigration reform legislation.
January 9, 2009
FAR E-Verify Rule Delayed
Jeanne Butterfield, Executive Director of the American Immigration Lawyers has told its members that the January 15, 2009 effective date for the FAR E-Verify Rule for Federal Contractors and subcontractors has been delayed.
We will watch the Federal Register and apprise you when the details are made public. The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council would need to publish a notice in the Federal Register that the regulation which amended the Federal Acquisition Regulation (FAR) to require government contractors and subcontractors to join E-Verify, would be delayed in its implementation.
On December 23, 2008, the United States Chamber of Commerce and other plaintiffs filed a complaint in the District Court in Maryland seeking declaratory and injunctive orders that the FAR E-Verify Final Rule and the Executive Order upon which it was based exceeded the authority of the executive branch to change key provisions of the Immigration and Nationality Act. The complaint sought expedited judicial relief in light of the FAR E-Verify Final Rule’s January 15, 2009 published effective date.
Immigration Forces Invoke the Economy
Anna Gorman reports in the LA Times;
Religious and labor leaders called upon Congress and President-elect Obama to pass a comprehensive immigration package this year and said that the U.S. economy could not be restored without legalizing the nation's undocumented immigrants.
"Immigration reform is a necessity in order to fix the American economy," John Wilhelm, president of Unite Here's hospitality-industry division, said Thursday during a national teleconference call on immigration reform. The New York-based group represents more than 450,000 workers around the U.S.
Wilhelm said immigration legislation would help the recovery by eliminating exploitation, increasing wages and tax compliance and placing all workers on a level playing field.
Los Angeles Cardinal Roger Mahony, who has been an outspoken proponent of legalization, said immigration is a humanitarian and moral issue but also an economic issue.
"Immigrants must be brought out of the shadows so they can fully contribute to our nation's future economic and social well-being," he said.
The participants in Thursday's call said they believed that the topic would be debated in Congress this fall and that legislation could come up for a vote in early 2010. They cited Obama's campaign pledge to address immigration reform and said that members of Congress and of Obama's transition team have indicated that it is a priority. They acknowledged, however, that no specific commitment had been made or timetable set.
But anti-illegal immigration advocates urged the U.S. government this week to curtail legal immigration in response to the economic crisis.
"With the federal government reporting continuing giant losses of jobs, it is time to slow the massive importation of workers," Roy Beck, executive director of NumbersUSA, wrote in a letter this week to Obama. "How can it make any sense for the American people's own government to be approving more competitors for a dwindling number of jobs?" Click here for the rest of the story.
Philadelphia Welcomes Chinese Investors
Marcia Gelbart and Linda Loyd reported this in the The Philadelphia Inquirer:
With coaxing from Gov. Rendell, the Convention Center Authority approved a resolution that enables the center's expansion to be partly financed with a $100 million loan that is backed by 200 wealthy investors from China, and elsewhere, who want to move to the United States.
The loan is part of a federally sponsored program in which immigrant investors, under certain rules, can become eligible to receive "green cards" for permanent residency. In exchange, they pledge $500,000 apiece toward various local development projects, such as the expansion. Click here for the full piece.
January 8, 2009
MLK National Day of Service
We are all being asked to engage in a National Day of Service in honor of Martin Luther King, Jr. and the inauguration of Barack Obama. Here's one event happening in Tucson:
Join us in Arizona as the Presidential Inaugural Committee National Day of Service Team in collaboration with the Martin Luther King Jr. Day Committee and the Community Food Bank host the Community Food Bank Stuff the Truck drive at Reid Park (Where the band shell is located)! We will have a truck there that we plan to fill it before the end of the day. There will be plenty of entertainment, food and fun for the family as well, so please join us for this cause during this wonderful time of the year and help continue to cultivate the spirit of service that is happening nationwide!
This is how you can help today:
1. Bring Non-Perishable Food Items to the MLK Day Celebration at the truck near the Reid Park Band Shell on Jan 19, 2009. (You can retrieve a list of acceptable items at www.communityfoodbank.com)
2. Work with your neighborhood/organization/or community group to fill a box to bring to the MLK Day celebration on January 19, 2009 at Reid Park
3. Write a check to the Community Food Bank with a memo of MLK Holiday. For each $1 donated, the food bank can distribute almost $9 of food, enough for about four meals! In fact, over 96 cents of every dollar donated goes to food and programs.
You can contact us for more information at email@example.com or firstname.lastname@example.org or by phone at (520) 746-3817.
To see the full list of events please go to: http://www.pic2009.org/page/event/search_simple
Marcus T. Coleman & Shasta McManus
Regional Field Directors
Presidential Inaugural Committee National Day of Service Team, Arizona
action, if any, do you want your members to take? Add a "Find out more" link to additional information that you may have hosted on your website
AILF Blasts Mukasey
Late yesterday, we posted information on Attorney General Mukasey's actions overturning the BIA on issues related to representation in removal proceedings. The American Immigration Law Foundation issued this statement today:
Washington, DC - Late yesterday, in the waning hours of a departing Administration, Attorney General Michael Mukasey unraveled decades of legal precedent guaranteeing due process to people facing life-changing consequences-namely, deportation. With less than two weeks left in office, this Administration apparently could not resist the temptation to take one more stab at undermining fundamental Constitutional principles.
The American Immigration Law Foundation (AILF) condemns this latest and last-minute decision that is part of the Administration's ongoing strategy to not only recede due process rights, but to thwart federal court oversight of immigration courts, which have been plagued with questions about the integrity of their decisions and allegations of political cronyism.
In a decision issued Wednesday, January 7, the Attorney General declared that henceforth, immigrants, asylum seekers, and all others in removal (deportation) proceedings do not have any right under statute or the Constitution to representation by a lawyer before they can be ordered deported. The Board of Immigration Appeals (BIA) and most federal courts have for decades operated under the premise that immigrants DO have such rights. The Attorney General has reversed many years of precedent and operation by simply declaring it so.
According to the Attorney General, because there is no legal or constitutional right to a lawyer, immigrants do not have the right to legal counsel and thus no right to complain or request a new hearing when their lawyer is incompetent or fraudulent. The Attorney General does attempt to ameliorate the harsh impact of his revolutionary action by allowing reopening of cases in certain highly extreme circumstances, but his declaration will wipe out the rights of all but a handful of people with one stroke of his pen.
"We are outraged by this action" said Nadine Wettstein, the Director of AILF's Legal Action Center. "With this ruling, the Administration is attempting to undermine an immigrant's right to a fair hearing on whether he should be thrown out of the country. It is yet another in a long line of midnight changes and an example of this Administration's disregard for fundamental principles of due process of law. It is also part of an ongoing attempt to eviscerate the federal courts' role in protecting against Constitutional abuses by the immigration agency. We strongly disagree with the Attorney General's pronouncements and are confident that federal courts eventually will reject this action."
The Attorney General's decision is Matter of Compean, 24 I & N Dec. 710 (A.G. 2009) is available at http://www.usdoj.gov/eoir/vll/intdec/vol24/3632.pdf
The AILF brief is available at http://www.ailf.org/lac/chdocs/IACBrief.pdf
Portrait of English-Language Learners
From Mary Ann Zehr of Education Week:
Quality Counts 2009, entitled "Portrait of a Population: How English-Language Learners Are Putting Schools to the Test," was released today. The report contains new data that can be used to inform policy debates, such as that states estimate that more than 56,000 new English-as-a-second-language teachers will be needed in the next five years and that only 11 states provide incentives for teachers to receive an endorsement in ESL. . . .
Because I'm "a people person" as well as a policy person, I particularly invite you to browse the section of the on-line report that provides 13 profiles of English-language learners (and former ELLs) across the nation. You can really sense through the audio interviews and photos how determined these students are to learn and how resilient many of them have been in adjusting to U.S. culture. Click here for the rest of her column.
Civil Rights Priorities for Congress
Source: Leadership Conference on Civil Rights
Dear Member of Congress:
On behalf of the Leadership Conference on Civil Rights (LCCR), the nation's oldest, largest, and most diverse civil and human rights coalition, representing over 200 national organizations, we write to share with you our goals for the 111th Congress and to urge you to join with us in working for these legislative priorities. The issues we have identified represent a path forward for this country in bringing change in all sectors—the economy, education, healthcare, criminal justice and others.
LCCR believes that these important legislative priorities are well positioned to pass in this Congress. Many of the items on our list are bills that have had bipartisan support and/or have passed one or both houses of Congress, such as SCHIP, Ledbetter, economic recovery, hate crimes, D.C. voting rights, and comprehensive immigration reform. Others, such as automatic and permanent voter registration, have emerged as crucial issues to be addressed in order to ensure fairness and access for all Americans.
We have divided our priority list into three categories: those that we believe can be passed in the first 100 days; those that we believe can pass in the first year; and those that we believe can be enacted by the end of the 111th Congress. We hope that you will support our issues, and join us in pursuing passage of these important civil rights bills.
First 100 Days
Ensure economic security: LCCR believes it is imperative for the 111th Congress to pass an economic recovery package that assists low-income individuals; protects public services; includes infrastructure and job creation provisions that contribute to the nation's recovery; and provides for access to jobs for disadvantaged populations, including:
* Providing additional state and local fiscal relief to preserve other vital services;
* Allowing struggling homeowners to obtain relief in bankruptcy court to avert foreclosures;
* An increase in Food Stamp benefits;
* Increased funding for WIC Supplemental Funding, Commodity Supplemental Food Program, and The Emergency Food Assistance Program;
* Restoring Child Support Enforcement to prevent $2 billion in losses to children and their families over two years;
* Responding to the surge in home energy costs by increasing LIHEAP;
* Preventing or minimizing reductions in Head Start;
* Creating jobs for unemployed youth;
* School repair or maintenance, which would create 280,000 jobs; and
* Increasing Unemployment Insurance.
Protect Employees from Paycheck Discrimination: In Ledbetter v. Goodyear Tire & Rubber Company, the Supreme Court reversed a well-established legal standard and severely weakened protection for pay discrimination critical for women in the workplace. In an effort to overturn the Supreme Court ruling and to help ensure that individuals subjected to unlawful pay discrimination are able to effectively assert their rights under the federal antidiscrimination laws, last year the House passed the Fair Pay Restoration Act in the 110th. However, the Senate narrowly failed to invoke cloture. With a new administration that has indicated support for the bill, we urge Congress to pass the Lilly Ledbetter Fair Pay Act/Fair Pay Restoration Act.
Combat hate crimes: In recent years, this legislation, which will strengthen federal law to combat hate crimes, has been approved by bipartisan majorities in both the House and the Senate several times. However, this measure has yet to become law. We strongly urge the 111th Congress to pass the Local Law Enforcement Hate Crime Prevention Act, to give local law enforcement officials important tools to combat violent, bias-motivated crimes – and facilitate federal investigations and prosecutions when local authorities are unwilling or unable to achieve a just result. Hate crime statutes are necessary to protect members of these groups from this most egregious form of discrimination.
Ensure health care for America's children: Last year, SCHIP (State Children's Health Insurance Program) passed both Houses of Congress, but support was insufficient to override President Bush's veto. The bill that passed in 2008 included a citizen documentation requirement and excluded the legal immigrant improvements. LCCR urges Congress to pass SCHIP without citizenship documentation requirements and with the provision that will end restrictions imposed on legal immigrant children's access to SCHIP, including a five-year waiting period. Repeal of the immigrant restrictions has a long-standing history of bipartisan support, the endorsement of the Tri-Caucus, and a history of positive votes.
Confirm new director and fully fund the Census Bureau: With the decennial census around the corner in 2010, the Census Bureau's ramp-up, including implementation of its communications plan, hiring of its vast temporary work force, and address canvassing, will occur in 2009. The Senate must ensure that it quickly and efficiently confirms a new director for the Census Bureau. Additionally, Congress must fully fund the Census Bureau in these upcoming years in order to conduct the most accurate census in 2010, including insisting on full funding for the communications, outreach, and partnership programs targeting minority and other hard-to-count communities. These programs are critical to the ability of the Census to accurately count these important populations. Additionally, the American Community Survey, which collects the socioeconomic data upon which we all rely, must also be fully funded so that we can obtain an accurate picture our nation's population.
Guarantee the right of employees to organize: Employees are the backbone of our nation's economy. The sad reality is that tens of thousands of workers are routinely fired or discriminated against every year when they try to freely exercise their right to freedom of association. The right to organize is a fundamental right recognized in the United Nations Declaration of Human Rights and it is essential to a free and democratic society. Congress must pass the Employee Free Choice Act to restore the right of workers to organize free from employer intimidation and coercion.
Provide voting representation for D.C. residents: The right to vote for those who make and enforce laws – the antidote to "taxation without representation" – is the most important right that citizens have in any democracy. Yet D.C. residents have long been deprived of this right. While they must pay federal income taxes, register for selective service, and serve on federal juries, U.S. citizens who live in D.C. have no voice in the laws that govern these matters, or over any other federal legislation. Congress must provide D.C. residents with fair and effective representation. We therefore urge you to pass the DC Voting Rights Act to provide U.S. citizens who live in the District of Columbia with a meaningful vote in the House of Representatives.
Reauthorize the Juvenile Justice and Delinquency Prevention Act (JJDPA): Every year there are over two million juvenile arrests, over 100,000 youth under juvenile justice supervision, and many thousands more who are under the custody of the criminal justice system. There is no need to incarcerate a child for skipping school or other "status offenses." Juvenile justice systems must do everything possible to ensure that children and youth in the justice system are treated in an age, cultural, and linguistically appropriate manner. The juvenile justice system must provide developmentally appropriate, evidenced-based services and supports. Under JJDPA, states would be required to assess and address the disproportionate contact of youth of color at key points of contact in the juvenile justice system – from arrest to detention to confinement. Most importantly, the JJDPA will help ensure fairness by making system officials more accountable for reducing disproportionate minority contact through policies, practices, and programs within the juvenile justice system. The reauthorization of the JJDPA contains provisions that establish equity, fairness, competence, and culturally- and linguistically-appropriate programs, policies, and practices. Core requirements of JJDPA reauthorization include alternatives to incarceration, putting children in juvenile, not adult, jails, making the juvenile system accountable, and providing appropriate treatment based on culture, language, and age.
Remove restrictions on legal services for low-income communities: As the nation struggles under the burgeoning economic crisis and record numbers of Americans are threatened with the loss of their homes, civil legal aid is more critical than ever. However, an outdated, illconceived, and inefficient law cuts deeply into the ability of low-income and minority communities to obtain a fair day in court. Restrictions in the Legal Services Corporation (LSC) appropriation rider prohibit vulnerable legal aid clients from joining class actions, claiming court-ordered attorneys' fee awards, or having their lawyers engage in other types of advocacy. The restrictions also prohibit certain legal immigrants, all undocumented immigrants, and people in prison from relying on legal aid lawyers at all. Finally, a particularly draconian restriction extends all of these restrictions to the non-LSC funds -- state, local and private funds -- of recipient programs as soon as they accept their first dollar in LSC funds. These restrictions, starting with the restriction on state, local and private funds, should be removed from the next rider to the Commerce, Justice, Science appropriations bill.
Achieve automatic and permanent voter registration: As evidenced by the most recent election, as well as previous elections, our nation continues to face both old and new barriers to ensuring the right of all Americans to vote and to have their votes count. While there are many improvements Congress should make to our nation's electoral systems, we believe that achieving automatic and permanent voter registration of all eligible Americans will go a long way to addressing these problems. Congress should pass legislation creating an affirmative duty for government to register eligible voters and establishing Election Day failsafe registration.
Ensure quality education: The No Child Left Behind Act of 2002 (NCLB) has played a significant role in exposing the breadth of educational disparities and changing the national debate around education reform. However, the law requires major improvements if it is to accomplish its goal of ensuring that all children receive a quality education. Most importantly, the law must be fully funded. There are also substantive improvements that need to be made, including improving the law's treatment of English Language Learners and other students with special needs, addressing the graduation rate crisis afflicting low-income and minority students, and helping districts to recruit, train, and retain highly qualified teachers, especially in hard-to-staff schools. We urge Congress to reauthorize the Elementary and Secondary Education Act to preserve accountability, spur the development of higher standards and better assessments, and increase funding and support for students, schools, and teachers.
Eliminate the cocaine sentencing disparity: We urge Congress to enact a bill that, after more than 20 years, would finally correct a major error in drug policy - the harsh sentencing policy for crack cocaine. The policy, particularly the mandatory minimum for simple possession, subjects those who are low-level participants to the same or harsher sentences as major drug dealers. This has had an especially devastating impact on African-American and low-income communities. Possessing or dealing as little as five grams of crack cocaine, a quantity that yields 10-50 doses, can result in the same five-year mandatory minimum sentence as dealing 500 grams of powder cocaine, a quantity that yields 2,500-5,000 doses. To combat this disparity, Congress should enact the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act, which would equalize the crack and powder penalties at the powder level and eliminate the mandatory minimum for simple possession.
End discrimination in employment based on sexual orientation and/or gender identity: LCCR has long believed that every American should be judged solely on his or her merits. Yet in most states, it remains legal to reject or fire a worker simply because of his or her sexual orientation or gender identity. Employment Non-Discrimination Act (ENDA) would prohibit such discrimination in most workplaces, while carefully addressing the needs of small businesses, religious institutions, and other employers with a legitimate need for flexibility. ENDA has enjoyed strong support from Congress as well as from the general public, and its enactment is long overdue.
End racial profiling: During the last five years, LCCR worked in coalition with other organizations to build congressional support for the enactment of the End Racial Profiling Act. In 2007, the End Racial Profiling Act of 2007 (ERPA) was introduced by Senator Feingold in the Senate and by Congressman Conyers in the House. If enacted, ERPA would prohibit any local, state, or federal law enforcement agency or officer from engaging in racial profiling. It would make efforts to eliminate the practice a condition of law enforcement agencies receiving federal money. ERPA would institute a meaningful enforcement mechanism to ensure that anti-profiling policies are being followed. Law enforcement agencies would be required to collect demographic data on routine investigatory activities, develop procedures to respond to racial profiling complaints, and craft policies to discipline officers who engage in the practice. ERPA would also provide victims of racial profiling with the legal tools to hold law enforcement agencies accountable (a private right of action).
Ensure language access: Approximately 24 million Americans speak English less than "very well." Individuals should be encouraged to learn English but should never be discriminated against based on their level of proficiency or their national origin and Congress should provide the necessary funding and resources to allow federal agencies to fully enforce Title VI of the Civil Rights Act of 1964. Further, Congress should enact legislation authorizing Medicare to pay for language services and increase federal payments for language services in Medicaid and SCHIP.
Create an independent fair housing enforcement agency: The fair housing enforcement system at HUD is broken. There is a fundamental conflict of interest: HUD is in the awkward position of policing its own programs for fair housing violations. HUD depends on various entities to carry out its policy goals, but is also responsible, when acting as a fair housing enforcer, to investigate some of these very same entities for housing discrimination. For example, HUD depends on lenders to promote homeownership, on builders to build affordable housing, and on cities to redevelop neighborhoods after a natural disaster. Forty years after Congress first passed the Fair Housing Act, we continue to have segregated communities, perpetuated in large part by the very agency charged with protecting the country against illegal housing discrimination. That is why a bipartisan commission, co-chaired by former HUD Secretaries Henry Cisneros and Jack Kemp, recommended amending the Fair Housing Act to move fair housing enforcement from HUD to an independent agency.
By the end of the 111th Congress
Comprehensive immigration reform: As Congress continues its efforts to consider reforming our broken immigration system, it must be careful to protect the civil and human rights of all people in the United States. New immigration legislation must take a comprehensive approach that: 1) encourages hardworking undocumented immigrants to come out of the shadows by providing a workable path to citizenship; 2) reduces unconscionable backlogs in the family immigration system; 3) respects the civil rights and civil liberties of all Americans and provides immigrants and their families with fair, humane, and common-sense procedures at all levels of the immigration, naturalization, or removal process; and 4) fully protects the rights of all workers regardless of their immigration status. We urge the 111th Congress to demonstrate a solid commitment to comprehensive immigration reform – starting with, as a down payment, the swift enactment of bipartisan legislation such as the DREAM Act, which would provide undocumented children who grew up in the United States the opportunity to become fully integrated members of our society through higher education or service to our country; AgJOBS, a bipartisan compromise supported by labor and management, which provides America with a stable farm labor force and helps ensure that farmworkers are treated fairly by giving undocumented workers a chance to earn legal status; and the recapture of unused family and employment visas, a bipartisan measure which "recaptures" family and employment-based immigrant visas that do not get used each year, due to bureaucratic delays, and allow unused visas each year to "roll over" and be used in the following year.
Pass the Civil Rights Act of 2009: The Civil Rights Act, a comprehensive bill addressing Supreme Court decisions that have undermined existing civil rights laws, remains one of LCCR's highest priorities. Among its most notable and far-reaching provisions, the Civil Rights Act corrects the Supreme Court's 2001 Alexander v. Sandoval decision by establishing a private right of action against entities receiving federal funding based on evidence of disparate impact. The bill also strengthens gender and age discrimination protections, improves remedies for victims of discrimination, prevents employers from forcing workers to bring workplace claims to arbitration instead of the courts, and addresses workplace exploitation of undocumented workers.
President & CEO
Executive Vice President
Performance Art That I Want to See: EL MEXORCIST!
El Mexorcist, a performance artist aims to exorcise fears about the U.S./Mexico border, and is now appearing in Arizona: "The member of San Francisco-based radical arts collective La Pocha Nostra returns to the Old Pueblo for his one-man show, "El Mexorcist 4: America's Most Wanted Inner Demon," in which his stage personae take on immigration policy, the Minutemen, rising nativism and cultural and sexual identity - among other topics."
Would any of our frequent commentators like to check this out?
Mexican Immigrants Join Napa Valley Vintner Class
The Latin American Herald Tribune reports on an interesting trend among Mexican migrants, who long have labored in the Napa Valley vineyards are Mexicans, in becoming vintners. This is surprising to me on a number of levels but good news nonetheless, further evidence of Mexican immigrant integration into American economic life..
Is War With Mexico -- or "Just" a Border "Surge" -- on the Horizon?
The N.Y. Times had an ominous report yesterday about U.S. plans for a "surge" along the U.S./Mexico border: "The soaring level of violence in Mexico resulting from the drug wars there has led the United States to develop plans for a “surge” of civilian and perhaps even military law enforcement should the bloodshed spread across the border, Homeland Security Secretary Michael Chertoff said Wednesday."
Haitians Cannot Catch a Break!
Over the last 30 years, various Presidential administrations have subected persons fleeing turmoil in Haiti to detention, interdiction, and repatriation. Candidate Bill Clinton promised to end repatriation only to change his mind as President Clinton. The Miami Herald reports that "The Bush administration has rejected a request by Haitian President René Préval and others to allow tens of thousands of undocumented Haitians living in the United States to stay until their homeland recovers from a string of deadly summer storms. ''After very careful consideration, I have concluded that Haiti does not currently warrant a TPS [temporary protected status] designation,'' Michael Chertoff, secretary for the U.S. Department of Homeland Security, wrote in a letter last month to Préval."
January 7, 2009
AG Overrules Lozada and Assaad
On his way out the door, Attorney General Mukasey is leaving with a bang.
Matter of Compean, Bangaly, JEC, 24 I&N Dec. 710 (A.G. 2009) ID #3632
(1) Aliens in removal proceedings have a statutory privilege to retain private counsel at no expense to the Government.
(2) Aliens in removal proceedings have no right to counsel, including Government-appointed counsel, under the Sixth Amendment of the Constitution because the Sixth Amendment applies only to criminal proceedings and removal proceedings are civil in nature.
(3) Aliens in removal proceedings also have no right to counsel, including Government-appointed counsel, under the Fifth Amendment. Although the Fifth Amendment applies to removal proceedings, its guarantee of due process does not include a general right to counsel, or a specific right to effective assistance of counsel, and is
violated only by state action, namely, action that can be legally attributed to the Government. Lawyers privately retained by aliens in removal proceedings are not state actors for due process purposes. Accordingly, there is no Fifth Amendment right to effective assistance of counsel in removal proceedings. To the extent the Board’s decisions in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), and Matter of Assaad,
23 I&N Dec. 553 (BIA 2003), are inconsistent with this conclusion, those decisions are overruled.
(4) Although the Constitution and the immigration laws do not entitle an alien in removal proceedings to relief for his lawyer’s mistakes, the Department of Justice may, as a matter of administrative grace, reopen removal proceedings where an alien shows that he was prejudiced by the actions of private counsel.
(5) There is a strong public interest in ensuring that a lawyer’s deficiencies do not affirmatively undermine the fairness and accuracy of removal proceedings. At the same time, there is a strong public interest in the expeditiousness and finality of removal proceedings. On balance, these interests justify allowing the Board to reopen removal proceedings in the extraordinary case where a lawyer’s deficient performance likely changed the outcome of an alien’s initial removal proceedings. In addition, they call for a set of standards and requirements that will allow the Board to resolve most claims expeditiously and on the basis of an alien’s motion to reopen and accompanying documents alone. Whether an alien has made a sufficient showing to warrant relief based on counsel’s allegedly deficient performance is, in each case, committed to the discretion of the Board or the immigration judge.
(6) The deficient performance of counsel claim extends only to the conduct of a lawyer, an accredited representative, or a non-lawyer that the alien reasonably but erroneously believed to be a lawyer who was retained to represent the alien in the proceedings.
(7) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel bears the burden of establishing (i) that his lawyer’s failings were egregious; (ii) that in cases where the alien moves to reopen beyond the applicable time limit, he
exercised due diligence in discovering and seeking to cure his lawyer’s alleged deficient performance; and (iii) that he suffered prejudice from the lawyer’s errors, namely, that but for the deficient performance, it is more likely than not that the alien would have been
entitled to the ultimate relief he was seeking.
(8) An alien who seeks to reopen his removal proceedings based on deficient performance of counsel must submit a detailed affidavit setting forth the facts that form the basis of the deficient performance of counsel claim. He also must attach to his motion five documents or sets of documents: (i) a copy of his agreement, if any, with the lawyer whose performance he alleges was deficient; (ii) a copy of a letter to his former lawyer specifying the lawyer’s deficient performance and a copy of the lawyer’s response, if any; (iii) a completed and signed complaint addressed to, but not necessarily filed with, the appropriate State bar or disciplinary authority; (iv) a copy of any document or evidence, or an affidavit summarizing any testimony, that the alien alleges the lawyer failed to
submit previously; and (v) a statement by new counsel expressing a belief that the performance of former counsel fell below minimal standards of professional competence. If any of these documents is unavailable, the alien must explain why. If any of these documents is missing rather than nonexistent, the alien must summarize the document’s contents in his affidavit. Matter of Lozada, superseded.
(9) The Board’s discretion to reopen removal proceedings on the basis of a lawyer’s deficient performance is not limited to conduct that occurred during the agency proceedings. The Board may reopen on the basis of deficient performance that occurred subsequent to the entry of a final order of removal if the standards established for a deficient performance of counsel claim are satisfied.
Asian American Voters Supported Obama
Along with others, we've reported on the effect that Latino voters had on the November elections. Here's information from AALDEF and APIAVote on Asian American voters:
Asian Pacific Islander American Vote (APIAVote) today hailed the Asian American Legal Defense and Education Fund's (AALDEF) exit poll results as strong evidence of the growing strength of the Asian American vote.
The responses of nearly 17,000 Asian American voters in 11 states showed that they voted for Barack Obama by more than a 3 to 1 margin, and supported other Democratic candidates, making the differences in key contested states in the historic November 2008 presidential elections.
"The differences we make may be marginal compared to other constituency groups, but we are talking about a presidential race where the margins truly mattered," said Eunsook Lee, APIAVote board co-chair. "When we are mobilized, we can determine a race, whether local, state, or national. We applaud AALDEF's efforts to capture the phenomenon of Asian American voters, and encourage media outlets and polling experts to work with us in ensuring that we are accurately represented in sampling and exit polling."
"AALDEF results indicate that AAPI voter turnout can determine whether or not a candidate wins or loses. The growing strength and increased participation of Asian Americans is evident in this exit poll," said Vida Benavides, APIAVote executive director. "These results also show that political parties can do much more in outreaching to our AAPI community needs, which are not very much different from other communities' needs. We commend the political parties for their efforts, and will continue to be a resource to political parties so that they can more fully engage AAPIs in the political process.
The nonpartisan exit poll also found that 58% of Asian Americans were registered Democrats, while 26% were not enrolled in any political party, and 14% of Asian Americans were registered Republicans.
While non-random and conducted in precincts with significant AAPI populations, the AALDEF sample is representative of the national Asian American population. Significant findings include the following:
Nearly one third of Asian Americans surveyed were first-time voters.
87% of respondents who were born in the U.S. voted for Obama.
Four out of five Asian Americans are foreign-born citizens.
One out of three respondents had limited English proficiency.
Asian Americans shared common political interests across sub-ethnic lines.
The longer the citizenship tenure of Asian Americans, the higher their rates of voting for Obama.
All subethnic groups voted for Obama, with the exception of Vietnamese voters.
APIAVote is a national non-partisan, nonprofit organization that encourages and promotes civic participation of Asian Americans and Pacific Islanders (AAPIs) in the electoral and public policy processes at the national, state and local levels. APIAVote does not endorse parties or candidates. Please visit www.apiavote.org for more information.
More about the AALDEF Exit Poll:
The 2008 multilingual exit poll provides a unique snapshot of the voter preferences of Asian Americans at 113 poll sites in 9 cities in 11 states with large Asian American populations: New York, New Jersey, Virginia, Maryland, Pennsylvania, Massachusetts, Michigan, Illinois, Nevada, Louisiana, Texas, and Washington, DC. AALDEF has conducted exit polls of Asian American voters in every major election since 1988. The AALDEF exit poll collected information about the party enrollment, English proficiency and issue preferences of first-time voters, foreign-born voters, women voters, and young voters.
AALDEF worked with 60 co-sponsoring organizations (including APIAVote) to mobilize 1,500 attorneys, law students and community volunteers to conduct the multilingual exit poll and to monitor polling places for incidents of voter discrimination. Please visit www.aaldef.org for more information.
Say It Ain't So: Arpaio on Conan!?
From America's Voice: Call NBC NOW!
Arizona's biggest immigrant bully, Sheriff Joe Arpaio, is going to be on Conan tonight.
Please call NBC RIGHT NOW to tell them the truth about Sheriff Joe, who should be prosecuted for racial profiling of anyone who looks Latino, not glorified on national TV:
Call NBC and ask for the Conan O'Brien Show: 1-212-664-4444.
Ask to be connected to the Conan Show producers. Say something like this:
"I am horrified that Sheriff Joe Arpaio, a civil rights abuser who has 2,700 lawsuits filed against him, is going to be on the Conan Show.
I hope that the producers encourage Conan to ask Sheriff Arpaio about his racial profiling of Latino citizens in Arizona."
Tell the show's producers that Sheriff Joe's tactics may be showy, but they aren't funny:
· 2,700 lawsuits have been filed against Arpaio for his civil rights violations.
· Joe prioritizes immigrant sweeps over prosecuting felons (there are 40,000 outstanding warrants in his county)
· County response times to emergency calls have shot up while arrest rates for non-immigration crimes plummeted.
First Ten Senate Bills: Number 9 is Immigration Reform
From Frank Sharry of America's Voice:
First Ten Senate Bills: Immigration Reform is Number 9
S.1—American Recovery and Reinvestment Act of 2009. “To create jobs, restore economic growth, and strengthen America�s middle class through measures that modernize the nation�s infrastructure, enhance America�s energy independence, expand educational opportunities, preserve and improve affordable health care, provide tax relief, and protect those in greatest need, and for other purposes.” The stimulus bill; no surprises here
S.2—Middle Class Opportunity Act of 2009. Sound familiar? This is a retread of a bill sponsored by Senator Chuck Schumer in the last Congress that has a variety of tax reform goals; the additional descriptions in this bill include hints at union support ("ensuring workers can exercise their rights to freely choose to form a union without employer interference") and perhaps another go at the Ledbetter law ("removing barriers to fair pay for all workers")
S.3—Homeowner Protection and Wall Street Accountability Act of 2009. This bill will include a moratorium on foreclosures, Senator Dick Durbin’s plan to allow for easier reworking of troubled mortgages by bankruptcy judges, new regulations for the credit card and financial industry, and investment in the Small Business Administration to provide loans for small businesses in need. It also makes TARP—the Wall Street bailout—a larger part of foreclosure reduction
S.4—Comprehensive Health Reform Act of 2009. “It is the sense of Congress that Congress should enact, and the President should sign, legislation to guarantee health coverage, improve health care quality and disease prevention, and reduce health care costs for all Americans and the health care system.” Paging Ezra!
S.5—Cleaner, Greener, and Smarter Act of 2009. This is a bill that focuses mainly on green investment and updating infrastructure to be more efficient and less polluting. But since a lot of those priorities are expected to be rolled into the stimulus package, one wonders if this is a vehicle for cap-and-trade and the Kyoto Protocols, given this provision: “requiring reductions in emissions of greenhouse gases in the United States and achieving reductions in emissions of greenhouse gases abroad.”
S.6.—Restoring America�s Power Act of 2009. This is basically the Democrats’ ‘08 foreign policy consensus: Refocus on Afghanistan, transition in Iraq, strengthen alliances, WMD non-proliferation in Iran and North Korea… you get the idea. Most of this is in the executive branch’s bailiwick so this legislation may just be a supportive resolution indicating that if Obama needs new authorities or resources to accomplish these goals, he’ll get them. The bill also includes goals of providing proper training and equipment to the Armed Forces, and medical care when they return from duty
S.7—Education Opportunity Act of 2009. “To expand educational opportunities for all Americans by increasing access to high-quality early childhood education and after school programs, advancing reform in elementary and secondary education, strengthening mathematics and science instruction, and ensuring that higher education is more affordable.” An education omnibus bill that will no doubt be split up into separate pieces of legislation
S.8—Returning Government to the American People Act. “To return the Government to the people by reviewing controversial ‘midnight regulations’ issued in the waning days of the Bush Administration.” A sentiment we can all get behind, which promises to provide the new administration legislative authority, if it doesn’t have it already, to review (and presumably deny) the last administration’s late regulations
S.9—Stronger Economy, Stronger Borders Act of 2009. Seems to be a placeholder for comprehensive immigration reform, including stronger border and employment security to crackdown on illegal immigration while “reforming and rationalizing avenues for legal immigration.”
S.10—Fiscal Responsibility Act of 2009. Gosh, this one is interesting. It’s one part congressional hand-wringing over the fact that “the Federal budget is on an unsustainable path of rising deficits and debt,” and it calls for a study of this. It’s one part fiscal hawkery, supporting “strong pay-as-you-go rules, to help block the approval of measures that would increase the deficit.” And it’s one part ... populist? “A review of the current system of taxation of the United States to ensure that burdens are borne fairly and equitably.” That could be the justification for the Bush tax cut rollback in 2010.
National Network Letter to Obama
Letter from the National Network for Immigrant & Refugee Rights:
Please join us in congratulating Barack Obama for his election to the presidency of the United States - and to urge him support the human rights, safety and well-being of immigrants and refugees.
We will be collecting signatures to an "Open Letter" to our new President until January 15. Please add your name to this letter, which will be released prior to the Inauguration on January 20.
The road to immigration reform will undoubtedly be long and complicated, but we are cautiously optimistic that immigration reforms are on the horizon - if we continue to organize and keep the pressure on the Administration and Congress. We must make our voices heard and demand that any reform ensure full protection of human rights, rights of workers and family reunification.
As a starting point for a genuine, rights-based immigration policy, we are urging the new President to end the cycle of punishment and abuse against immigrant communities, by stopping raids and suspending detentions and deportations.
Among the proposals to the new President, we ask him to:
Support a legalization program without burdensome barriers for immigrant workers and their families;
Uphold family reunification as a core principle for U.S. immigration policy;
Restore and preserve due process rights, to ensure equality before the law for all persons, regardless of immigration or citizenship status;
End the criminalization of immigrants, including problematic employment verification requirements; local police collaboration in immigration enforcement; and indefinite and mandatory detention;
Roll back and end the militarization of the U.S.-Mexico border.
All of our voices and efforts are needed to usher in a new era of opportunity and justice! Read the entire letter to President-elect Barack Obama here and join us in making this a banner year for immigrant rights!
January 6, 2009
Homeland Security USA
Oh brother. Tom Shales (Washington Post) review of the newest reality show:
Homeland security may not be a laughing matter, but ABC's new "Homeland Security USA" has a certain fitful risibility -- like when border agents capture a cache of sinister plastic toys, or discover that one of the items seized as "confiscated food" and initially identified as "a prohibited meat item of unknown origin" turns out to be barbecued bat from Thailand. Eeeuuww.
While the series -- an upscale "Cops" with an international air -- oozes with praise for the "thousands of dedicated men and women" whose job it is to keep saboteurs from gaining entry into the United States, nary a single solitary terrorist is nabbed in the opening episode. Instead, the agents make drug bust after drug bust, at one point confiscating a set of glass pipes even though their owner has no illegal substances in his possession.
The Young Man With a Bong does have a good, if cheeky, question for the Border Patrol: Will he be reimbursed for the pinched pipes? Answer: just a snicker from an agent.
ABC's cameras join homeland security forces at San Ysidro, Calif., on the Mexican-American border; at Los Angeles International Airport, familiarly identified with the appropriate abbreviation, LAX; and in Blaine, Wash., site of a crossing on the Canadian-American line. Wait -- wasn't Blaine the hapless little hamlet in Christopher Guest's 1996 comedy "Waiting for Guffman"? Yes and no -- it was Blaine, Mo. Click here for the rest of the piece.