Saturday, May 15, 2010
Senate Judiciary Chair Patrick Leahy recently introduced the Refugee Protection Act of 2010, S. 3113, which, among other things, would repeal the one year deadline on asylum applications, narrow the definition of "terrorist" organizations, and repeal the BIA’s requirement of social visibility for particular social groups. Here is a section by section analysis of the bill and a letter for organizations and experts to sign in support of the bill. Download RPA Sectional Analysis_Leahy-Levin Download Refugee Protection Act signon letter for experts The letter will state that individual signatories’ institutional affiliations are listed for identification purposes only.
Senator Leahy is going to hold a hearing on this bill on Wednesday, so signatures are requested for the record by 11 AM Eastern time on Tuesday, May 18. TO SIGN ON TO THE LETTER, REPLY TO HUMAN RIGHTS FIRST, WHICH IS COLLECTING THE SIGNATURES. THE EMAIL ADDRESS FOR SIGNATURES IS firstname.lastname@example.org
Friday, May 14, 2010
In conjunction with today’s discussion with elected officials who have been at the center of the immigration debate, the Center for American Progress released the report “Beyond Arizona: Without Comprehensive Immigration Reform, Intolerance Will Rise Across Our Country” outlining how these laws, in particular Arizona’s S.B.1070, thrive in the absence of comprehensive immigration reform. According to the report, S.B. 1070 could result in more racial profiling and the wrongful detention of legal residents. It is the most severe immigration enforcement law enacted by any state since 1994, when California voters approved Proposition 187, a measure that proposed denying education, nonemergency health care, and other public services to undocumented immigrants. A federal court subsequently ruled the proposition was unconstitutional because it trampled on the federal government's exclusive jurisdiction over immigration matters. Yet laws like these will continue to receive support from an impatient public that is easily influenced by restrictionist rhetoric. Citizens across the country, but especially those along the southern border, increasingly believe that rising crime rates are due to growing undocumented immigrant populations—even though there has been a drop in violent crime in major cities along the U.S.-Mexico border and undocumented immigrant entries into the United States have fallen in recent years due to the economic recession and tighter border security. As the local officials at today’s event noted, this raging political firestorm will not end until constitutionally sound federal solutions are in place. The report examines the rapid rise in state and local immigration enforcement measures that have been implemented in the absence of the needed overhaul of federal immigration law. It reviews how immigration restrictionists are pushing new laws detrimental to the safety of our communities and in violation of the U.S. Constitution, using any scare tactic available to rally support for their cause. And it shows how legal challenges to the harshest of these new laws are succeeding in federal courts across the country. Finally, it presents the case for comprehensive immigration reform, which would put an end to these restrictionist efforts and restore our nation’s legal immigrant heritage.
A student comment in the Yale Law Journal (119 Yale L.J. 1351 (2010)). sheds light on the interpretation of the citizenship provisions of the Fourteenth Amendment to the U.S. Constitution.
As interpreted consistently for more than a century, the Fourteenth Amendment has guaranteed birthright citizenship to all people born within the United States, subject only to minor exceptions such as for births to foreign diplomats. Some have recently argued, however, that federal law should be changed to deny birthright citizenship from the children of undocumented immigrants born in the United States. Among other things, they have relied upon the alleged views of Senator Lyman Trumbull regarding the meaning of language in the Civil Rights Act of 1866, which he sponsored, which led to the current language about citizenship in the 14th Amendment. The Comment looks at the historical evidence about Trumbull's views to show that he would not support a narrow interpretation of the Fourteenth Amendment.
NEW AMERICANS IN THE BEAVER STATE: Immigrants, Latinos, and Asians are an Economic Powerhouse in Oregon
The Immigration Policy Center has compiled research which shows that immigrants, Latinos, and Asians are an important part of Oregon's economy, labor force, and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers, and entrepreneurs. With the nation working towards economic recovery, Latinos, Asians and immigrants will continue to play a key role in shaping the economic and political future in the Beaver State.
Highlights from Oregon include:
* Immigrants made up 9.8% of Oregonians (or 367,551 people) in 2007.
* The Latino share of Oregon's population was 10.6% (or 397,230 people) in 2007; the Asian share 3.6% (or 134,908).
* The 2009 purchasing power of Latinos in Oregon totaled $7.0 billion - an increase of 660.9% since 1990. Asian buying power totaled $4.7 billion - an increase of 425.0% since 1990.
* If all unauthorized immigrants were removed from Oregon, the state would lose $3.4 billion in economic activity, $1.5 billion in gross state product, and approximately 19,259 jobs.
There is no denying the contributions immigrants, Latinos, and Asians make in Oregon and the important role they will play in the states' political and economic futures.
Readers of this blog are no doubt interested in how a Justice Elena Kagan might rule on immigration cases in the U.S. Supreme Court. In this regard, we previously reported on (1) the still unresponded to request of the U.S. Supreme Court for the United State to provide its views in Chamber of Commerce v. Candelaria, the Arizona business licensing case that raises important questions of the scope of state (and federal) power to regulate immigration: (2) the position that Solicitor General Kagan took in the landmark case of Padilla v. Kentucky, which allows an ineffective assistance of counsel claim to be premised on incorrect advice about the immigration consequences of a criminal conviction; and (3) the decision of the Solicitor General to side with the noncitizen petioner in favor of judicial review of the denial of a motion to reopen in Kucana v. Holder.
In addition, the N.Y. Times in scouring Justice Thurgood Marshall’s papers for material about Elena Kagan found that, as a law clerk, she cautioned prudence and to not grant cert in a case (U.S. v. Shonde, 803 F.2d 937 (8th Cir. 1986)) in which the noncitizen had been victorious despite the fact that the law in her view favored the Department of Justice.
Elena Kagan also served as a counsel and domestic policy advisor in the Clinton White House. For Tom Goldstein's thorough review of Kagan’s career on SCOTUS blog, click here. A few immigration-related documents written by Elena Kagan are included in the White House papers.
In one memorandum, Kagan considered a recommendation of the Commission for Immigration Reform, headed by the late member of Congress Barbara Jordan, that the old Immigration & Naturalization Service be dismantled. Kagan and her superior, Bruce Reed, in a “Memorandum for the President”, Download Box%20115%20Immigration%20Doc%202, disagreed with the recommendation and instead suggested more incremental reform and better separation of the service and enforcement functions within the INS, a position later embraced by the Clinton administration. They reasoned that this measure would be less disruptive than abolishing the INS. The functions of the INS, of course, were later moved to the Department of Homeland Security after its creation in the wake the tragic events of September 11, 2001 (and the old INS inexplicably renewed the visas of several of the noncitizens allegedly involved in the devastation).
In one note on a memorandum analyzing a variety of technical immigration law matters, including analysis of the “stop time” rule in the BIA ruling of Matter of NJB, which the Attorney General reviewed,Kagan wrote to Reed
“Lots of legal gobbledlygook; don’t spend much time on it. Instead, read the memo signed by you! (and others).” (emphasis added). Download Box%20115%20Immigration%20Doc%204
Many immigration law junkies might agree that the Immigration & Nationality Act, implementing regulations, and related agency and court decisions are little more than “legal gobbledlygook.”
Kagan also co-authored a memo analyzing competing proposals to amend the H1-B visa provisions from Senators Kennedy and Abraham. Download Box%20115%20Immigration%20Doc%205
From these materials, Kagan strikes me as a skillful and careful -- and risk averse -- lawyer. In my estimation, it is not easy from the limited data to say how as a Justice she might approach immigration laws and decisions. But, my best guess is that Justice Kagan would be skillful, careful, and risk averse in her approach to immigration on the Court..
Migra! A History of the U.S. Border Patrol by Kelly Lytle Hernández (University of California Press, 2010). Abstract: This is the untold history of the United States Border Patrol from its beginnings in 1924 as a small peripheral outfit to its emergence as a large professional police force. To tell this story, Kelly Lytle Hernández dug through a gold mine of lost and unseen records stored in garages, closets, an abandoned factory, and in U.S. and Mexican archives. Focusing on the daily challenges of policing the borderlands and bringing to light unexpected partners and forgotten dynamics, Migra! reveals how the U.S. Border Patrol translated the mandate for comprehensive migration control into a project of policing Mexicans in the U.S.-Mexico borderlands.
Kelly Lytle Hernández is a historian at UCLA.
Customs and Border Protection Head Under Scrutiny for Documentation of Household Staff Eligibility to Work
Government Executive reports that "Senate Finance Committee staff reported late Wednesday that Alan Bersin, commissioner of Customs and Border Protection, misrepresented the number of household staff he employed and failed to properly document his employees' eligibility to work in the United States." For analysis of the issue by Carl Schusterman, click here.
It has been reported that the future confirmation of Bersin, who has an interim appointment, is in jeopardy.
The L.A. Times reports that "The Los Angeles City Council, protesting Arizona's tough crackdown on illegal immigration, voted Wednesday to ban most city travel to Arizona and future contracts with companies in that state. Council members argued that a new Arizona law, which will make it a state crime to lack immigration papers and requires police to determine whether people they stop are in the country illegally, would lead to racial profiling and discrimination."
"The current discussion over Arizona's new immigration statute, S.B. 1070, has largely focused on the extent to which it “empowers” or “allows” state and local law enforcement officials to enforce federal immigration laws. Yet, in doing so, the conversation thus far overlooks the most significant part of the new statute: the extent to which Arizona mandates local immigration enforcement by attacking local control. The fact is the new Arizona law does little to adjust the federalist balance with respect to immigration enforcement. What it does, however, is threaten to radically alter the state-local relationship by eliminating local discretion, undermining the ability of localities to manage their law enforcement and other domestic priorities, and authorizing a new legal cause of action against local communities. Thus, S.B. 1070 not only targets undocumented immigrants and those who may be suspected of being such, but also local law enforcement agencies and the counties, cities, and towns that they serve. This, I argue, is the true significance, and one of the overlooked tragedies, of S.B. 1070."
Thursday, May 13, 2010
Sen. Dick Durbin writes in The Hill:
The Arizona law recently signed by Gov. Jan Brewer would require police to check the immigration status of an individual if there is “reasonable suspicion” the person is an undocumented immigrant. Like former Florida Governor Jeb Bush, Senator Lindsey Graham (R-S.C.), and former Arizona Governor Janet Napolitano, I have serious concerns about the fairness and constitutionality of the Arizona law.
There is no doubt Arizona faces serious law enforcement challenges as a result of illegal immigration. But the reality is the situation in Arizona is a symptom of a broader problem: Our broken immigration system. And putting the police in a position of enforcing this law is unfair in light of our own failure to act in Washington. That’s why the Arizona Association of Chiefs of Police has strongly urged the U.S. Congress to “immediately initiate the necessary steps to begin the process of comprehensively addressing the immigration issue to provide solutions that are fair, logical, and equitable.”
I couldn’t agree more. We need a comprehensive approach to secure our borders, crack down on employers who hire illegal immigrants and require those who came here illegally to register with the government, learn English, and pay back taxes and other fines before they can go to the back of the line to work towards becoming taxpaying American citizens.
And immigration reform legislation must address the plight of immigrant children who grew up in this country but are prevented from pursuing their dreams by current immigration law. They are honor-roll students, valedictorians, community leaders and aspiring teachers and doctors. Click here for the rest of the piece.
Al Baker writes for the NY Times:
Blacks and Latinos were nine times as likely as whites to be stopped by the police in New York City in 2009, but, once stopped, were no more likely to be arrested.
The more than 575,000 stops of people in the city, a record number of what are known in police parlance as “stop and frisks,” yielded 762 guns.
Of the reasons listed by the police for conducting the stops, one of those least commonly cited was the claim that the person fit the description of a suspect. The most common reason listed by the police was a category known as “furtive movements.” Click here for the rest of the piece.
Wednesday, May 12, 2010
U.S. Citizenship and Immigration Services (USCIS) has announced that it has redesigned the Permanent Resident Card—commonly known as the “Green Card”—to incorporate several major new security features. And it will be green again -- and will include biometrics to allow for computer identification of the cardholder.
The head of the Seattle chapter of the NAACP on Tuesday called a videotape, showing a Seattle police officer stomping on and using racially charged language toward a Latino man, evidence of a hate crime.
James Bible says the NAACP is calling on the King County Prosecutor's Office to file malicious harassment and assault charges against Det. Shandy Cobane.
"Anytime, when civil rights are violated, when human rights are violated of any person within our county, within our city and within our nation, we must take a stand," said Bible.
The video, shot April 17 near Lake Union, shows Det. Cobane stomping on the 21-year-old man's arm or hand and possibly kicking him in the head. He then yells something that could be interpreted as a racial slur. Another officer, Mary Woollum, appears to stomp on the unidentified man's legs.
"In this particular case, when you have a detective standing over a defenseless person, saying that they will kick the Mexican … out of them, this is malicious harassment," said Bible. "This is clearly a hate crime."
Bible says the NAACP receives reports like this often. The difference is there is video evidence this time.
"So when we have video and recording of an incident such as this, it is critical that the prosecutors of this county, that we have put in place to uphold the law, file hate crime charges," said Bible.
Bible says he's concerned that other officers at the scene stood by and did nothing, and perhaps failed to write down what happened in their reports.
"The blue wall of silence is alive and well at the expense of the people," said Bible.
Gov. Chris Gregoire also spoke about the incident Tuesday.
"No excuses for that and I hope they'll take swift action so it never ever happens again in this state," said Gregoire.
Bible's says his displeasure spreads to the top of the ranks, to Interim Chief John Diaz. He says the NAACP had recently raised concerns to him about officer training, but that he had not given them the response they had hoped for.
Bible also took KCPQ-TV to task, accusing the station of not releasing the video in order to foster its relationship with local law enforcement.
"And perhaps most disturbingly, within that, it seems that there's a significant possibility that there was an inferred threat from law enforcement in reference to whether or not Channel 13 should air that particular video," said Bible.
The video was shot by a photographer who was working for KCPQ on April 17. That photographer claims KCPQ chose not to air the video. He claims he was let go by the station after posting the video on YouTube.
On Tuesday afternoon, KCPQ released a statement, saying that it did not intentionally suppress the video.
"The video is very disturbing," said the station. "The actions of the officers and the language used by one of them, understandably, elicits an emotional reaction from everyone who sees it. As a result, we felt it was important to learn as much as possible about the circumstances surrounding the incident captured on the video before we aired it. Not doing so would have been reckless and done a disservice to the community and to the police department."
KCPQ says it should have reported the story sooner, adding "We take responsibility for that mistake and we apologize."
Collateral Consequences Calculator Developed: Can Alert Judges and Lawyers to Immigration and Public Housing Consequences of a Criminal Conviction
Criminal defendants in New York can find out the hard way that pleading guilty may be only the beginning of their trip through the legal system. There are often additional consequences to a conviction–even for seemingly minor crimes–that can affect, among other things, a defendant’s immigrant status or eligibility for public housing. However, defendants and their lawyers, along with prosecutors and judges, may not be aware of what those consequences are.
Now, an innovative web-based tool developed by the Lawyering in the Digital Age Clinic at Columbia Law School and the Columbia Center for New Media Teaching and Learning (CCNMTL) is aiming to change that. The Calculator will provide legal practitioners and judges in New York with an overview of the immigration and public housing eligibility consequences that attach to a guilty plea or conviction. The calculator can be viewed at http://calculator.law.columbia.edu
Elena Kagan and the Arizona Business Licensing Case (Chamber of Commerce of the United States v. Candelaria)
An important immigration case pending in the U.S. Supreme Court involving a previous effort by the state of Arizona to regulate immigration will probably be in the news again in the coming weeks. Given the huge controversy over Arizona's latest immigration law and the heated politics of Supreme Court nominations, the case -- and the position ultimately taken by the United States in the case -- may have implications on the confirmation of Elena Kagan to the Supreme Court.
Chamber of Commerce of the United States v. Candelaria is currently before the Court. It raises the questions
(1) whether an Arizona statute that imposes sanctions on employers who hire unauthorized immigrants is invalid under a federal statute that expressly “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens”;
(2) whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary;
(3) whether the Arizona statute is impliedly preempted because it undermines the “comprehensive scheme” that Congress created to regulate the employment of immigrants.
In short, the Candelaria case raises the very topical issue -- especially given the fact that so many state and local governments are enacting immigration laws of some sort -- of the scope of federal preemption of state and local immigration laws.
In an opinion by Judge Schroeder, the Ninth Circuit (Download 09-115_ca9) upheld the Arizona law. Last November, the Court (and here) invited the United States to file a brief expressing the views of the United States in the case. As Solicitor General, Kagan will be filing the brief. She has yet to do so, which now is generating much speculation about the reasons for the delay. See here and here.
I bet that SG Kagan wished that she had filed that brief in December!
From the National Korean American Service & Education Consortium:
US Olympian Simon Cho Reaches Out to Youth in Face of Anti-Immigrant State Proposals
Former Undocumented Immigrant Speaks Up for Immigration Reform
Los Angeles –Kicking off Asian American and Pacific Islander Heritage Month on Thursday, May 6 and Friday, May 7, the youngest member of the US Olympic Speed Skating Team and 2010 bronze medalist Simon Cho spoke to about 1,140 people as part of a community tour sponsored by Korean Resource Center and National Korean American Service and Education Consortium (NAKASEC). Simon Cho reached out to Los Angeles students from elementary school grades through college-age, as well as to seniors in the Korean American community, to share his struggles growing up in an immigrant family and how he achieved his dreams as a person of color. For most of his formative childhood years, Simon Cho was an undocumented immigrant in America. His accomplishments shine light on what America has to gain when immigrants are welcomed and given a path to citizenship.
After participating in his first Olympic Games, Simon Cho feels a responsibility to stand up as an athlete whose family suffered the consequences of our failing immigration system. He shared his memory of physically crossing the border from Vancouver to Seattle, and answered questions about his personal life, the sport he excels in, financial hardships he faced, and his hope for a better America.
U.S. Customs and Border Protection Commissioner Alan Bersin announced today that Michael J. Fisher will assume the role as Chief of the U.S. Border Patrol. Fisher will direct the enforcement efforts of more than 20,000 Border Patrol agentsy. Prior to his appointment, Chief Fisher served as the Chief Patrol Agent of the San Diego, California Sector.
We continue to try to gain an understanding of how a Justice Elena Kagan might approach immigration matters. We previously reported that, as Solicitor General, Kagan sided with the petitioner seeking judicial review of a motion to reopen in Kucana v. Holder. In Padilla v. Kentucy, Solicitor General Kagan filed an amicus brief on behalf of the United States urging affirmance of the Kentucky Supreme Court's denial of post-conviction relief. Here is the SCOTUS Wiki summary of the argument in the brief:
"The amicus brief filed by the United States in support of affirmance indicates that, because the majority of federal criminal prosecutions are resolved through guilty pleas, the outcome of the case will have direct implications for review of federal convictions. The United States agrees with Padilla that the Kentucky Supreme Court erred in holding that misadvice with regard to immigration consequences does not merit a Sixth Amendment analysis: although defense attorneys are under no obligation to advise defendants about the immigration consequences of a guilty plea, the United States asserts in its brief, an attorney who does provide such advice “has a duty to avoid doing so incompetently.” Because the decision to enter a guilty plea belongs to the defendant alone, and because incompetent advice (with regard to both direct and collateral consequences) might undermine this decision, affirmative misadvice with regard to immigration consequences may thus constitute a Sixth Amendment violation. However, the United States continues, the Strickland analysis requires both deficient performance and prejudice, and Padilla cannot meet the second requirement. Because any defendant faced with deportation can allege, after the fact, that his defense counsel’s advice prejudiced their plea decision, the U.S. argues, courts must apply Strickland’s prejudice prong “rigorously,” using an objective test – established by the Court in Roe v. Flores-Ortega (2000) - that finds prejudice only when “a rational defendant [would have] insist[ed] on going to trial.” Because “the evidence of guilt was overwhelming” in Padilla’s case, and because going to trial might have exposed Padilla to a longer sentence than he would have received after pleading guilty, Padilla could not “rationally” have opted to forgo a guilty plea and proceed to trial." (emphasis added)
The Supreme Court, in a 7-2 opinion by Justice Stevens, reversed. It found that Padilla had a Sixth Amendment right but did not rule on whether his right had been violated and whether Padilla had been prejudiced by the ineffective assistance in this case.
Truly no stranger to controversy, Arizona Gov. Jan Brewer signed a bill targeting ethnic studies programs. Jonathan Cooper of AP reports that "State schools chief Tom Horne . . . said a Tucson school district program promotes `ethnic chauvinism' and racial resentment toward whites while segregating students by race." The law bans "classes that advocate ethnic solidarity, that are designed primarily for students of a particular race, or that promote resentment toward a certain ethnic group." The Tucson Unified School District offers courses in African-American, Mexican-American and Native-American studies that focus on history and literature.
Click here for some additional information about the Arizona law and a link to the text. The L.A. Times reports that the Tucson Chicana/o Studies program was supported by a court-ordered school desegregation decree, which complicates any possible dismantling of the program. "Augustine Romero, director of student equity in the Tucson school district, said it now had become politically acceptable to attack Latinos in Arizona."
Irene Scharf (U Mass-Dartmouth) has published A PEOPLE'S GUIDE TO U.S. IMMIGRATION LAW. It is under 100 pages with an intended audience of immigrants, their families and friends, law students, and lawyers trying to get a quick sense of the key issues.
Table of Contents
Chapter 1: Arriving In The United States
Chapter 2: Consequences Of Entering Without Inspection (EWI) Chapter
Chapter 4: Immigrants
Chapter 5: What are my Rights? When Can I...?
Chapter 6. Police Raids & Searches, Worksite Raids, And Rights Of Detainees
Chapter 7. Avoiding Deportation -- What To Do And Say In Deportation Hearings
Chapter 8: Avoiding Immigration Problems Altogether -- Naturalizing
Chapter 9: Appealing Cases
Chapter 10. Lengthy And Indefinite Detention