August 1, 2009
NY Times: Detained and Abused
The N.Y. Times, citing a recent National Immigration Law Center report, weighs in on the side of immigration advocates on the need for the Obama Administration and DHS Secretary Janet Napolitano, which earlier this week declined to promulagate detention rules, to do something about the immigration detention mess. A mainstream spotlight on the conditions of immigrant detention cannot but help bring about action on the longstanding national disgrace of the American Gulag.
Alvaro Huerta: Another Case of American Racism
Alvaro Huerta, is a doctoral student at UC Berkeley, provide us with this guest post “Another Case of American Racism”
Americans love to claim the death of racism. Conservatives in particular commonly posit that there’s no more need for affirmative action or so-called special treatment of racial minorities in higher education, government jobs and other areas, given the progress made in this country.
As someone who grew up in East Los Angeles housing projects who attended elite universities, UCLA and now UC Berkeley, I often hear the “end-of-racism” claim in graduate seminars, academic conferences and in the news from conservatives, politicians and average Americans.
Now that we’ve elected a black president, conservative political pundits argue, racism has been defeated. The nomination of the first Latina to the Supreme Court, the argument goes, represents the end of discrimination in the U.S.
While millions of Americans were finally relieved to put racism in the dustbin of history, washing away all of that white-guilt from over two hundred years of slavery, Jim Crow, segregation of racial minorities in barrios and ghettoes, white-flight to the suburbs, lack of minorities in higher education and high concentration of minorities in prisons, here comes black Harvard scholar Henry Loius Gates Jr. to spoil the “victory” party.
How dare the 58-year-old, black professor enter his house without a key and allegedly demand the name from the arresting officer? Doesn’t he know that providing proof of employment and residence doesn’t suffice for a black man in a white-dominated university town?
All sarcasm aside, what bothers me most about the national discourse surrounding the arrest of a prominent black man centers on how blame is being equally distributed on both parties, Cambridge police James Crowley and Harvard Professor Gates. If only both parties acted rationally, many Americans assert, including President Obama after retreating from his assertion that the Cambridge police “acted stupidly,” then this “regrettable” incident could’ve been avoided.
Nothing can be further from the truth.
Based on the information provided to the public, it’s clear to me that we’re talking about an unequal power relation where Crowley abused his power by arresting Gates. On the one hand, for instance, we have a white police officer with a gun, with backup at his disposal, while, on the other, we have a 58-year-old black man in his own home without posing a danger to anyone.
In addition, a recently released 911 tape shows that the woman caller, Lucia Whalen, states that she was not sure if the two men who forced their way into the house were actually breaking in or just had a problem with a key. Now, if these two men, one described by Whalen as someone who “looked kind of Hispanic” were actually breaking into the house in bright daylight through the front door, why does she patiently wait outside for the police to arrive?
Based on this scenario, the only issue the Crowley needed to resolve was whether Gates actually lived in the yellow house on Ware Street by obtaining proper identification. What was the need for Crowley to call the campus police once Gates provided his Harvard ID and driver’s license, something that Crowley writes in his police report?
Crowley’s police report reminds me of high school bully who goes to the principal’s office and plays the victim role. Apparently, Crowley was just “doing his job” and represents a victim of verbal abuse by an elderly black man, claiming that Gates called him a racist and said to him, “”ya, I’ll speak with your mama outside.’” For a moment, I thought Crowley was talking about the rapper Snoop Dogg and not a respected professor from an Ivy League university.
While I found many contradictions in Crowley’s report, for the sake of argument, let’s say that Gates called him a racist and launched a “yo mama” joke at him. What kind of country do we live in where you—whether you’re a professor or janitor—can be arrested in your own house for expressing how you feel at an authority figure without posing a threat? Should we then arrest all of the conservatives who called Supreme Court nominee Sonia Sotomayor a racist?
Finally, if Crowley told the truth in this report, why were the charges immediately dropped? This makes no sense. If Gates broke the law, like Crowley maintains without apology, he should be prosecuted regardless of his privileged status as a Harvard professor.
Instead of being invited to drink some beers with Gates, Vice-President Biden and President Obama at the White House, Crowley should be investigated to determine whether he broke the law for filing a false police report and unjustifiably arresting a black man, who just happens to be a distinguished scholar, in his own home.
Vietnamese Refugee Nominated to Federal Bench
NAPABA and AAJC Applaud Nomination of Judge Jacqueline Nguyen as Federal District Court Judge for the Central District of California
Washington, DC - The National Asian Pacific American Bar Association (NAPABA) and the Asian American Justice Center (AAJC) celebrate the nomination of the Honorable Jacqueline Nguyen for United States District Judge for the United States District Court for the Central District of California. If confirmed, Judge Nguyen would be the nation's first-ever Vietnamese American to serve as an Article III judge. She would also become the third-ever Asian Pacific American female Article III judge in United States history, and the first-ever Asian Pacific American woman to serve as an Article III judge in California.
"Judge Nguyen's nomination is a promising start for the Obama Administration and is extremely significant for the Asian Pacific American community," said Andrew T. Hahn, Sr., President of NAPABA. "Given that Asian Pacific Americans represent 15% of California's population and less than 7% of the state's Article III judges, the community is long overdue for increased representation at this level. Judge Nguyen is an extremely well-qualified jurist who is uniquely positioned for this important nomination."
There are currently no active Asian Pacific American federal appellate court judges, and of the approximately 850 federal judges nationwide, less than 1% are Asian Pacific American.
AAJC President Karen Narasaki noted, "We are very excited at the significant number of Asian Pacific American attorneys who, like Judge Nguyen, are extremely well qualified to be nominated to federal judgeships. We believe the President is committed to improving the diversity reflected in the judiciary and are very hopeful that we will see many more Asian Pacific Americans being nominated over the next several months."
NAPABA and AAJC have been working with the Senate and the Obama Administration to identify potential nominees. NAPABA and its affiliates - local Asian Pacific American bar associations throughout the country - have been working to ensure that Asian Pacific American attorneys are represented on the selection committees who are making recommendations to the Senators who are nominating candidates for the District Court and vetting potential candidates for NAPABA to recommend to the President. NAPABA also screens and supports qualified candidates, and works toward getting state Senators to recommend Asian Pacific American candidates and getting the White House to nominate them. AAJC has been working in a broad coalition of civil rights and other progressive groups to advocate for increasing the number of Asian Pacific American, women and other underrepresented groups on the federal bench.
Judge Nguyen's courageous life story epitomizes the American Dream. For the past seven years, Judge Nguyen has served as a Judge on the Los Angeles Superior Court. Prior to her appointment to the bench, Judge Nguyen served for six years as an Assistant United States Attorney with the Criminal Division, and ultimately as the Deputy Chief of the General Crimes Section. As a child, she escaped the fall of South Vietnam with her family through a harrowing trip, starting with a plane ride temporarily separating her from her father, through chaotic Saigon, to the Philippines, to Guam, and eventually, to Camp Pendleton, California. Judge Nguyen embraced her new life in America with grace, fortitude, determination, and cheerful modesty, assisting her mother in cleaning dental offices while growing up. She eventually earned a scholarship to Occidental College before attending the University of California at Los Angeles School of Law,! continuing all the while to help her mother in the family donut shop on the weekends.
NAPABA and AAJC join in thanking President Obama for nominating Judge Nguyen, and Senator Dianne Feinstein for recommending Judge Nguyen to the President.
Law Prof to Argue Before the Supremes
Tony Mauro of the National Law Journal reports that the Supreme Court on Thursday appointed Professor Amanda Leiter (Catholic) to argue in favor of the Seventh Circuit's decision in Kucana v. Holder. Leiter will fill in for the U.S. government because Solicitor General Elena Kagan in her brief in the case agreed with petitioner Agron Kucana, an Albanian facing deportation who originally was ordered deported in absentia (he had overslept), that the court of appeals erred. The question presented is whether the Illegal Immigration Reform and Immigrant Responsibility Act bars judicial review of the Board of Immigration Appeals' denial of a motion to reopen.
We previously reported on Solicitor Kagan's decision to throw in the towel on Kucana v. Holder. It may have something to do with the fact that the Bush administration lost 3 of 4 immigration cases last Term, a dreadful loss rate for the U.S. government in light of the fact that the Supreme Court is generally so defererential to administrative agencies -- and especially in immigration matters.
New Immigration Film (7 Soles) and Documentary (Exiled in America)
"El Negro is hired to smuggle a group of undocumented migrants into the United States. He wants out of the smuggling business and claims this is his last trip. His superiors, now suspicious, send Gavilan, a younger smuggler, to keep an eye on him. During the troubled crossing, the smugglers fight and eventually lose part of their human cargo. Negro escapes from his former associates but also from justice."
A short documentary, Exiled in America, tells the story of five siblings whose mother is deported to Mexico. Professor Barbara Hines (Texas) appears in the video.
Frontline on Postville
PBS' Frontline reports on "Guatemala: A Tale of Two Villages" by Greg Brosnan and Jennifer Szymaszek. It tells how the raid by immigration officers in Postville, Iowa in May 2008 had a devastating on a small village, El Rosario, in Guatemala and Postville itself.
July 31, 2009
Insure Undocumented Immigrants
Christopher Beam writes for Slate.com:
One of President Obama's favorite arguments for health care reform has been economic: If it saves money, do it. Except when it comes to covering undocumented immigrants.
Obama reiterated Thursday that a health care bill will not cover illegal immigrants. "Undocumented workers who are here illegally—we want to create comprehensive immigration reform so they can ge! t on a path to citizenship," he told Univision. "Until they do, we can 't reward them with some of the benefits which quite frankly cost us a lot of money." That was after some conservative commentators claimed that some versions of the bill would insure the undocumented, ignoring language in the bill that limits access to "an individual who is lawfully present in a State in the United States."
Adding the immigration debate to the health care debate isn't likely to make either one simpler or less emotional. Still, the reasoning is pretty straightforward: If you think insuring the uninsured makes economic sense, then so does insuring undocumented immigrants. But neither side in the health care debate seems eager to make this point.
The case for insuring illegals is simple. Society already pays the price for treating them. But it pays in the least efficient way. When someone who doesn't have insurance shows up at a hospital with a bronchial infection, doctors are required by federal law to treat him or her. The hospital then ! passes on those costs to the rest of us in the form of higher prices for other patients, which leads to higher insurance premiums and, in the cases of Medicaid and Medicare, higher taxes. Better to insure those patients so that they can go to a doctor at the first signs of illness—not when they start coughing up blood. Click here for the rest of the piece.
Activists Strategize to Push for CIR Now
Sophia Tareen writes for the Associated Press:
Activists disappointed that the Obama administration has not given Immigration top billing are trying to yank the issue off the back burner by pressing ahead with their own lobbying and legislation plans they hope will reinvigorate reform efforts.
By honing in on national lawmakers they believe are sympathetic or can be swayed to support their cause and drawing on voters who said reform was a top priority, many immigrant rights advocates are striving to make headway at a time when the economy is top priority.
"We're not going to just be chanting, 'Yes we can! Yes we can!"' said Jorge Mujica, an Immigration advocate in Chicago, which held the largest May 1 rallies and often sets the tone for activists nationwide. "We are going to put the pressure on discussing the details."
It's been a roller coaster ride for immigrant rights advocates pushing for reform over the past few years. When a call to action came in 2006, more than a million people nationwide marched in solidarity to fight a bill considered anti-immigrant. Since then, two legislation attempts failed. The movement fractured and May 1 rallies lost attendance.
Then came a surge of energy with massive voter registration drives and the election of President Barack Obama, whose father moved to the U.S. from Kenya.
Many activists hoped Obama would push for Immigration reform during his first 100 days in office. Some even thought the president would go so far as to put a moratorium on Immigration raids.
But the first hint of movement didn't come until late last month when Obama met with about 30 lawmakers. Though some immigrant rights advocates praised the meeting and Obama's vow to take up the issue this year, others complain he's been too vague on his plans for border security, employer-based verification for workers and the estimated 12 million illegal immigrants living in the U.S.
"People are disappointed that things haven't moved further," said University of California, Los Angeles professor Raul Hinojosa-Ojeda. "They're beginning to organize their own set of priorities."
At this week's annual convention in Chicago of one of the country's largest Hispanic advocacy organizations -- the National Council of La Raza -- attendees got tips on how to lobby lawmakers.
During a session called "Take Your Advocacy to the Next Level! Getting Immigration Reform Done," panelists specializing in political strategy told activists to create a "power analysis" of their U.S. senators and representatives that would include finding out their political donors, stances on Immigration and core values so activists could better appeal to them.
For example, activists could target Democratic Sen. Kay Hagan, of North Carolina, who has advocated for families and is a working mom, the panelists said. With that in mind, they could press her on the issue of keeping immigrant families together, they said.
On the ground, activists are getting a jump start on such efforts. One group in Chicago, United Front for Immigrants, has drafted its own legislation proposal that gives lawmakers specific ideas to reform Immigration including ways to "decriminalize the status of being undocumented." For example, instead of deporting illegal immigrants who have no criminal background, the proposal suggests alternative punishments like community service. Click here for the rest of the article.
Manuel Pastor on CIR
One of the threads of many posts lately has been the prospects for comprehensive immigration reform. Manuel Pastor (USC) offers some thoughtful perspectives on that subject -- and ties reform to immigrant integration measures -- on the Economic Policy Insttitute blog.
July 30, 2009
Journalists' Guide for Covering Immigration
Media coverage of immigration -- indeed, even the terminology used -- can dramatically affect the public perception of immigration and immigrants. The International Center for Journalists (ICFJ) recently published a guide that aims to be a useful resource for journalists seeking to improve coverage of immigration. Titled "Covering Immigration," the guide was written by Stephen Franklin and Teresa Puente. The handbook is available in English and Spanish, in PDF or interactive formats. According to the ICFJ website, "[t]he guide focuses on avoiding and breaking stereotypes, cultivating sources, and ethics in immigration coverage. It also offers an analysis of the roots of immigration and a list of sources and resources for journalists."
Hat tip to my old Cal chum, Bill Hinchberger, editor of BrazilMax (www.brazilmax.com).
Schumer on FAIR and an Immigration Reform Proposal by Labor Day
In an op/ed in the Buffalo News last week, Senator Charles Schumer (D-NY) states that "Daniel Stein, head of an extremist group called FAIR [the Federation for American Immigration Reform], distort[ed] my position on immigration in order to scare the American people using false and distorting arguments. My view on immigration is direct and simple. I believe that the vast majority of the American people are both anti-illegal immigration and pro-legal immigration. That’s why I intend to introduce comprehensive immigration reform legislation by Labor Day that secures our border, stops the flow of illegal aliens to the United States and requires all illegal aliens present in the United States to quickly register their presence with the U. S. government and start paying taxes or face imminent deportation." (bold added).
There are several things interesting about Senator Schumer's statement, especially because he is the Democratic Senator taking the lead on immigration reform.
First, he refers to FAIR -- a misnomer of an acronym if there ever was one -- as an "extremist group," a fact of which those familiar with the U.S. immigration debate are well aware (see, e.g., here and here) but which the popular press and the general public appear unaware. Given its advocacy of more and more enforcement and tighter immigration admissions (if not an outright moratorium on immigration -- an "immigration time out"), FAIR can be expected to oppose almost any comprehensive reform proposal introduced.
Second, Senator Schumer in the op/ed continues to promise to introduce immigration reform legislation by Labor Day, which is just arround the corner. We will see what the holiday weekend brings and what kind of immigration reform will be on the table. Senator Schumer's trial balloon on a national identification card for workers does not appear to have gotten any traction. It should be a very interesting fall!
July 29, 2009
Texas AG Opinion on the Legality of In-State Tuition for Undocumented Students Without Clear Answers
Attorney General Greg Abbot provides the following Legal Conclusion:
f j 1623, if the state statutes provide a "postsecondary education benefit" to an alien who is not lawfully present in the United States on the basis of "residence," within the meaning of the federal statute, "unless a citizen or national of the United States is eligible for such a benefit . . . without regard to whether the citizen or national is such a resident." 8 U.S.C. 5 1623(a) (2006). However, the terms "postsecondary education benefit" and "residence" are not defined in the federal law. In addition, no Texas or federal court has construed these terms or considered the substantive application of the federal law to a statute similar to the Texas statutes. Thus, while a federal or state court in Texas, following the reasoning of an intermediate California state appellate court decision, could find that 8 U.S.C. f j 1623 preempts Education Code sections 54.052(a)(3) and 54.053(3) to the extent ofthe conflict with the federal law, given the paucity of judicial precedent, this office cannot predict with certainty that a court would so find.
The United States Supreme Court has "approved bona fide residency requirements in the field of public education." Martinez v. Bynum, 461 U.S. 321, 326-27 (1983). Additionally, the Court has recognized "that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis." Vlandis v. Kline, 412 U.S. 441,452-53 (1973). "This 'legitimate interest' permits a 'State [to] establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates."' Bynum, 461 U.S. at 327 (quoting Vlandis, 412 U.S. at 453-54). Accordingly, a federal or state court in Texas would likely conclude that Education Code sections 54.052(a)(3) and 54.053(3) do not facially violate the federal Equal Protection Clause because the statutory prerequisites for in-state tuition are reasonable requirements that serve Texas's legitimate or substantial interest in assuring that only bona fide residents that graduate from Texas high schools or receive the diploma equivalent from this state are eligible for in-state The Honorable Rob Eissler - Page 7 (GA-0732) tuition. However, no court has addressed whether a statute similar to the Texas statutes conforms to the mandates of the Equal Protection Clause."
For the full opinion, click here.
No New Rules Federal Rules on Immigration Detention
The Obama administration has refused to make legally enforceable rules for immigration detention, concluding that 'that rule-making would be laborious, time-consuming and less flexible' than the review process now in place." This has disappointed and angered many immigrant advocacy groups across the country. For the full story, click here.
New Immigration Articles
Here are three pieces of immigration scholarship by authors whose work I always learn from:
Gilbert, Lauren. Citizenship, civic virtue, and immigrant integration: the enduring power of community-based norms. 27 Yale L. & Pol"y Rev. 335- 398 (2009).
Heyman, Michael G. Protecting foreign victims of domestic violence: an analysis of asylum regulations. 12 N.Y.U. J. Legis. & Pub. Pol"y 115-149 (2008).
Morawetz, Nancy. Book review. (Reviewing David Ngaruri and Philip Schrag, Asylum Denied: A Refugee"s Struggle for Safety in America.) 58 J. Legal Educ. 587-596 (2008).
A Note on Comprehensive Immigration Reform
Readers of the ImmigrationProf blog might find of interest my musings on Concurring Opinions on "comprehensive immigration reform."
SPLC to CNN: "Fire Dobbs"
From the Southern Poverty Law Center:
"Respectable news organizations should not employ reporters willing to peddle racist conspiracy theories and false propaganda," wrote SPLC President Richard Cohen. "It's time for CNN to remove Mr. Dobbs from the airwaves." Click here.
I applaud SPLC's efforts to convince CNN to get rid of hate mongerer Lou Dobbs from the airwaves.
Immigration Litigation News
BIA Ruling in Asylum Related to Gang Persecution in El Salvador
The Immigrant Law Center of Minnesota, through its Immigration Litigation Project, has been representing the young siblings ordered removed to El Salvador by the Board of Immigration Appeals in Matter of SEG, 24 I&N Dec. 579 (BIA 2008). The Board, while finding that the young men faced serious danger from the MS-13 gang if removed, denied their asylum claims, holding that there was no definable social group. They denied that youth who have been subjected to recruitment efforts by the gang and who have rejected or resisted membership due to their own personal, moral, and religious opposition to the gang constitute a particular social group. Working with co-counsel at the law firm of Latham & Watkins, the Immigrant Law Center filed motions to reopen and reconsider with the Board, submitted requests for certification of Matter of SEG to Attorney General Holder, and also were pursuing a petition for review at the U.S. Court of Appeals for the Eighth Circuit. The Board denied the motion to reopen in June 2009. The Eighth Circuit appeal and request for certification remained pending. On July 6, 2009, ICE agents unexpectedly arrested and detained the clients and were poised to remove them to El Salvador this week. They had not been detained at anytime prior. ICE summarily denied the requests for an administrative stay. The Eighth Circuit denied a stay. An emergency application for a stay of removal was filed with Supreme Court Justice, Alito. When he denied the application, it was refilled with Justice Stevens who in turn referred the matter to the full court. The full court requested the government's response by July 29. Late last week, ICE released the clients. Shortly afterwards, the Immigrant Law Center were contacted by DHS appellate counsel and the Solicitor General's office, offering a joint motion to reopen. A motion was filed last week and the BIA reopened the case for further consideration of the asylum claims. For the BIA order, see Download MATTER of SEG - BIA order reopening1
No Detention Rule
Despite the fact that immigration detention conditions have been consistently criticized (see, e.g.,here), the Obama administration has announced its refusal to make legally enforceable rules for immigration detention in a letter. Immigrant rights advocates contend that much evidence "underscore[s] the government’s failure to enforce minimum standards it set in 2000, including those concerning detainees’ access to basic health care, telephones and lawyers, even as the number of people detained has soared to more than 400,000 a year." The letter from the Department of Homeland Security concludes “that rule-making would be laborious, time-consuming and less flexible” than the review process now in placer.
The administration’s letter responded to a 30-day deadline set by the federal district court in June. In that case, Judge Denny Chin ruled that the agency’s failure to respond to the plaintiffs’ petition for two and a half years was unreasonable.
For Nina Berstein's story in the N.Y. Times on this, click here..
July 28, 2009
Hundreds of U.S. Citizens Arrested and Detained by ICE, and Some Deported are Suing
Among them are:
As reported in the San Francisco Chronicle, among them are:
-- Pedro Guzman, a mentally disabled man born and raised in Southern California, who was deported in 2007 to Mexico, where he survived by eating out of garbage cans for three months while his frantic mother searched for him.
-- Rennison Castillo, a Washington state man who was born in Belize but took his oath of citizenship while serving in the U.S. Army in 1998, who spent seven months in an ICE prison in 2006. He is suing the government with the help of the Northwest Immigrant Rights Project in Seattle. For the full story, click here.
Groups Finds North Carolina's 287(g) Program "Seriously Flawed"
The finding by the Institute of Latin American Studies at the University of North Carolina at Chapel Hill are based on an analysis of documents released under FOIA. For the full story, click here.
Arpaio Forced by Feds to Release Immigrants Illegally Arrested in Recent Sweep
Recently we posted on Arpaio's recent raid in Arizona, which led to the arrest of 13 immigrants. Arizona newspapers now report that DHS has ordered the release of all 13 detainees because their arrests did not follow new DHS directives on local immigration enforcement. For the full story, click here.