October 16, 2010
Santa Clara County Still Intends to Opt Out of S-Comm
Michael Moore writes in the Morgan Hill Times:
Despite the lead administrator saying local governments can't opt out of a federal program to crackdown on immigration violations, Santa Clara County will adhere to previous statements which said they can.
Earlier statements from the same department that runs Secure Communities assured the county that it can opt out of the program, and that's the word the county will accept, according to the county counsel's office.
Earlier this year, the county was automatically enrolled in the Secure Communities initiative of the U.S. department of Immigration and Customs Enforcement - a program which requires local jails to share inmate fingerprint data with ICE, which uses the information to enforce immigration laws.
The county was enrolled in the program in May 2009, but county officials did not know about Secure Communities until October 2009.
In recent weeks the Santa Clara County Board of Supervisors unanimously voted to begin an "opt-out" process to be exempt from the ICE enforcement agenda, based on correspondence from federal officials that assured them the program is voluntary and that counties can choose not to participate.
Participating in the program would contradict the county's policy not to assist in the enforcement of federal immigration law, county officials said. Doing so would erode trust among residents who need law enforcement assistance, jeopardizing their safety as a result, according to county officials. Read more.
Dismissal of More Houston Deportation Cases
Susan Carroll reports in the Houston Chronicle:
In the month after Homeland Security officials started a review of Houston's immigration court docket, immigration judges dismissed more than 200 cases, an increase of more than 700 percent from the prior month, new data shows.
The number of dismissals in Houston courts reached 217 in August — up from just 27 in July, according to data from the Executive Office for Immigration Review, which administers the nation's immigration court system.
In September, judges dismissed 174 pending cases — the vast majority involving immigrants who already were out on bond and had cases pending on Houston's crowded downtown court docket, where hearings are now being scheduled into 2012. Roughly 45 percent of the 350 cases decided in that court in September resulted in dismissals, the records show.
The EOIR data offers the first glimpse into Homeland Security's largely secretive review of pending cases on the local immigration court docket. In early August, federal attorneys in Houston started filing unsolicited motions to dismiss cases involving suspected illegal immigrants who have lived in the country for years without committing serious crimes.
News of the dismissals, first reported in the Houston Chronicle in late August, caused a national controversy amid allegations that the Obama administration was implementing a kind of "backdoor amnesty" — a charge officials strongly denied.
In recent weeks, some immigration attorneys reported the dismissals have slowed somewhat, while others reported they now have to ask ICE trial attorneys to exercise prosecutorial discretion in order to have their cases dismissed. Others, however, said they are still being approached by government attorneys seeking to file joint motions for case dismissal.
"They're still doing it," said immigration attorney Steve Villarreal. "They're just doing it quietly."
Immigration and Customs Enforcement officials declined this week to discuss specifics of the docket reviews and dismissals, which are also going on in several other cities, including Dallas and Miami.
In response to the Houston EOIR data, ICE spokeswoman Gillian Brigham noted that immigration judges can terminate cases for other than prosecutorial discretion, such as when ICE does not meet its burden of proof. The Houston immigration courts averaged about 38 case terminations each month in the 10 months prior to the DHS review. Click here for more.
October 15, 2010
Courting the Latino Vote
From the Center for American Progress:
Courting the Latino Vote: Facing the Demographic Realities of a 21st Century America
October 21, 2010, 12:00pm – 1:30pm
Admission is free.
Vanessa Cárdenas, Director of Progress 2050, Center for American Progress Action Fund
Introductory remarks by:
John Podesta, President and Chief Executive Officer, Center for American Progress Action Fund
Paul Begala, Democratic strategist and CNN contributor
César Martínez, Media Consultant, President, MAS Consulting
Janet Murguía, President and Chief Executive Officer of the National Council of La Raza
Ana Navarro, National Co-Chair, John McCain Hispanic Advisory Council
Angela Kelley, Vice President for Immigration Policy and Advocacy, Center for American Progress Action Fund
In an election season that already has bucked conventional political wisdom, there is one key element that political strategists can continue to count on: The Latino electorate continues to grow and is too big to ignore.
This year, heated gubernatorial and U.S. Senate races are in play in eight states where Latinos make up at least 10 percent of voters: Arizona, California, Colorado, Florida, Nevada, New Mexico, New York, and Texas, plus Connecticut and Illinois, which also have growing Latino electorates. The strength of the Latino voter turnout is also primed to determine the outcome in 17 of the toughest races for seats in the House of Representatives.
What is the future of the Latino vote? How will the major political parties adjust their messaging and outreach to capture the support of this influential segment of the electorate? How will they appeal to the Spanish-dominant voters who already have proven to be independent voters?
These and other questions will be posed to top Latino leaders and campaign veterans who have watched and analyzed the exponential growth of Latino voters for decades. Together, they will analyze the Latino vote for 2010 and beyond, discuss the immigration issue as it uniquely concerns the Latino community, and explain why Democrats should not take Latino voters for granted and why Republicans should not ignore them.
October 21, 2010, 12:00pm – 1:30pm
Space is extremely limited. RSVP required.
Seating is on a first-come, first-served basis and not guaranteed.
Center for American Progress Action Fund
1333 H St. NW, 10th Floor
Washington, DC 20005
From a "Green Farce" to a Green Future: Refuting False Claims About Immigrants and the Environment
A new report from the Center for American Progress (CAP) thoroughly debunks the simplistic claims of nativist groups that immigration to the United States fuels the destruction of the U.S. environment by contributing to "over-population" of the country. The report, entitled From a "Green Farce" to a Green Future: Refuting False Claims About Immigrants and the Environment, points out that the "over-population" argument of the nativists is based on the false premise that more people automatically produce more pollution. However, the truth of the matter is that "more people do not necessarily equal more stress on the planet, and stopping the flow of immigrants to this country will not solve our environmental challenges." In fact, the report finds that "immigrants actually live greener than most Americans and they can play a critical role in solving our environmental challenges."
Fair Hearings for Persons with Mental Disabilities
Amicus Curiae Human Rights Watch brief on The Failure to Provide Fair Removal Hearings to Persons with Mental Disabilities in Matter of L.T.
SUMMARY OF ARGUMENT
All respondents in immigration and removal proceedings, including those with mental disabilities, are entitled to a fair hearing and a chance to defend his or her rights. "‘The [incompetency] doctrine [where a defendant can not stand trial if he can't comprehend the charges against him, can't effectively consult with counsel, and can't assist in his defense] . . . has been characterized by the Supreme Court as ‘fundamental to an adversary system of justice.'" Bruce J. Winick, Restructuring Competency to Stand Trial, 32 UCLA L. Rev. 921, 950 (1985) (quoting Drope v. Missouri, 420 U.S. 162, 172 (1975)). Removal proceedings must respect human rights, honor U.S. human rights commitments, and ensure fair and accurate decision-making. A fair hearing is central to the protection of a person's rights and is the hallmark of a functioning justice system. To meet the right to a fair hearing guaranteed under international human rights law, meaningful safeguards are necessary to ensure such a fair hearing and protect the rights of individuals with mental disabilities. Among these safeguards are (1) the respondent's right to counsel, (2) the Immigration Judge's ("IJ") ability to terminate proceedings, (3) the IJ's power to order a competency hearing, and (4) the right to be free from arbitrary and prolonged detention. In order to comply with international human rights obligations, individuals with mental disabilities must be guaranteed the right to counsel in removal proceedings. Even then, in certain circumstances, if the IJ determines that a respondent with a mental disability cannot explain the reasons against expulsion, even with counsel, the IJ must be empowered to terminate proceedings. U.S. immigration law currently provides no right to appointed counsel for individuals with mental disabilities and remains confusingly unclear as to whether and under what circumstances an IJ may terminate proceedings or order a competency evaluation. Moreover, in the absence of these important safeguards to ensure a fair hearing, many immigration detainees with mental disabilities remain in prolonged detention during their immigration hearings. Accordingly, U.S. immigration law currently violates international human rights standards. Click here for the full brief.
Justice in Luis Ramirez Hate Murder
Michael Rubinkam of AP reports that a jury convicted two Pennsylvania men of a federal hate crime and could be sentenced to life in prison for beating and kicking a Mexican immigrant, Luis Ramirez, to deaths. In a case brought by the U.S. Department of Justice (see the DOJ press release), the jury found that Derrick Donchak and Brandon Piekarsky, former high school football players in the small town of Shenandoah, PA violated Ramirez's civil rights in an assault in July 2008. A key issue in the case was "the mindset of a quartet of belligerent teens who called Ramirez a `spic,' told him to go back to Mexico and assaulted the immigrant with their fists and feet."
The federal hate crime charges were brought after state court a jury acquitted them of serious state criminal charges, including murder.
According to AP, "The trial cast an unflattering light on Shenandoah, a hardscrabble town about 80 miles northwest of Philadelphia. Witnesses described a racially tense atmosphere as Hispanics swelled the population, attracted by cheap housing and jobs in factories and farm fields."
October 14, 2010
Lyttle v. United States: Lack Of Due Process In Immigration Detention System
The American Civil Liberties Union, the ACLU of Georgia and the ACLU of North Carolina today filed lawsuits in federal courts in Georgia and North Carolina on behalf of Mark Lyttle, a U.S. citizen of Puerto Rican descent with mental disabilities who was wrongfully deported to Mexico and forced to endure over four months of living on the streets and in the shelters and prisons of Mexico, Honduras, Nicaragua and Guatemala. The link above includes the complaints in the cases. Here is a description of the case.
For the blog post from a political scientist that broke this case, click here.
Workplace Enforcement and Immigration Policy
From the UC San Diego:
Unauthorized Migrant, Information Policy, and Workplace Enforcement.
Stephen Lee, Assistant Professor of Law, University of California, Irvine
Tuesday, October 26 at 2:00 pm
Eleanor Roosevelt College Administration Building
Conference Room 115, First Floor
Professor Stephen Lee researches at the intersection of administrative law and immigration law and has been published in the Stanford Law Review and California Law Review. Prior to joining UCI School of Law, Professor Lee was a fellow at Stanford Law School, clerked for Judge Schroeder on the Ninth Circuit, and practiced at Skadden, Arps. Taking an expansive view of noncitizen rights, his current research examines the regulation of unauthorized migrants in the workplace. Professor Lee graduated from Berkeley Law in 2005.
These seminars are open to all members of the UCSD community, as well as faculty and students from other universities and the general public. For directions to CCIS, please visit our website. For further information, please contact Ana Minvielle at email@example.com or 858-822-4447.
New American Voters The Growing Political Power of Immigrants and Their Children
Today, the Immigration Policy Center released a report on the rapidly rising number of New American voters. In The New American Electorate: The Growing Political Power of Immigrants and their Children, New American voters are defined as naturalized U.S. citizens and the children born to immigrants in the U.S. since 1965, when the current wave of immigration from Latin American and Asia began. The report also provides data on Asian and Latino voters. New Americans have a highly personal connection to the modern immigrant experience and are part of families that live the political and economic realities of immigration today. The Immigration Policy Center began documenting the size of this important voting bloc in 2008.
The report finds:
• New Americans accounted for 1 in 10 registered voters in the U.S. in 2008.
• Between 1996 and 2008, the number of New American registered voters jumped 101.5%.
Band of the Day: Los Lobos
Just a few weeks ago, Los Lobos performed a concert supporting Mexican American Legal Defense & Educational Fund's “Truth in Immigration” Educational Campaign in Los Angeles. At the concert, MALDEF delivered a program about the organization’s recent and ongoing immigration-related efforts, including the effort to defeat Arizona's immigration law, SB 1070.
Immigrants underrepresented in California's crime rates
During precisely the period that California experienced the biggest immigrant population increase in its history, the state also experienced a precipitous drop in crime rates, according to a new report by Barry Krisberg of UC Berkeley's School of Law. Illegal immigrants contribute far less to crime than some politicians would have you believe, including GOP gubernatorial candidate Meg Whitman. Read the California Watch story.
From the Bookshelves: Climate Change and Displacement Multidisciplinary Perspectives Edited by Jane McAdam
Environmental migration is not new. Nevertheless, the events and processes accompanying global climate change threaten to increase human movement both within states and across international borders. The Inter-governmental Panel on Climate Change has predicted an increased frequency and severity of climate events such as storms, cyclones and hurricanes, as well as longer-term sea level rise and desertification, which will impact upon people's ability to survive in certain parts of the world. This book brings together a variety of disciplinary perspectives on the phenomenon of climate-induced displacement. With chapters by leading scholars in their field, it collects in one place a rigorous, holistic analysis of the phenomenon, which can better inform academic understanding and policy development alike. Governments have not been prepared to take a leading role in developing responses to the issue, in large part due to the absence of strong theoretical frameworks from which sound policy can be constructed. The specialist expertise of the authors in this book means that each chapter identifies key issues that need to be considered in shaping domestic, regional and international responses, including the complex causes of movement, the conceptualisation of migration responses to climate change, the terminology that should be used to describe those who move, and attitudes to migration that may affect decisions to stay or leave. The book will help to facilitate the creation of principled, research-based responses, and establish climate-induced displacement as an important aspect of both the climate change and global migration debates. Jane McAdam is Associate Professor in the Faculty of Law University of New South Wales and Research Associate, Refugee Studies Centre, University of Oxford.
October 13, 2010
C-SPAN to Air Oral Argument in Arizona Immigration Law Appeal
C-SPAN will air the oral arguments in the U.S. Court of Appeals for the Ninth Circuit in Arizona Gov. Jan Brewer's appeal to the district court enjoining the implementation of core immigration provisions of SB 1070. The Ninth Circuit gave permission to televise the oral arguments, which are scheduled for November 1.
Undocumented immigrants draft legal plans in case of deportation
Alan Gomez of USA Today reports on a bitter sign of the times: "Immigrants nervous about stronger enforcement have started drawing up legal documents to spell out what they want to happen to their families and belongings if they are deported."
War On the Border: A 3-Part Vanguard Special
Current TV's "Vanguard" will air a three-part special on the U.S.-Mexico border issue this fall. The documentary news program, which has been lauded for its groundbreaking and in-depth approach to some of the world's most important and under-reported stories, will provide a fresh and insightful perspective on one of the nation's most complex and controversial topics.
The three-part special will launch on Monday, November 15 at 9/8c, with the second and third parts airing on consecutive Monday nights in prime time.
Georgia Says No to Undocumented College and University Students
Georgia's state board of regents decided today to ban undocumented immigrants from the University of Georgia, Georgia Tech and four other schools effective next fall. For more on this story, click here.
Sentencing Guidelines for Illegal Re-Entry After Deportation
From guest blogger, Professor Evelyn Cruz, Arizona State University:
U.S. v. Reyes-Fernandez (No09-1249)
U.S. v. Sanchez-Gonzalez (No. 09-1551)
2010 U.S. App. LEXIS 20709 (7th Cir. 2010)
Decided Oct. 7, 2010
Facts: Mr. Reyes-Hernandez plead guilty to illegally re-entering the United States after been removed twice following a conviction an aggravated felony (robbery). He was sentenced to forty-one months –the lowest available sentence under the guidelines. Mr. Sanchez-Gonzalez also plead guilty to illegal reentry after previously been removed for an aggravated felony conviction (domestic violence). He was sentenced to seventy-seven months imprisonment, the lowest available sentence under the guidelines. In a district operating under the “fast-track” program the judge could have considered imposing sentences below the applicable guidelines. However, the judge in the non fast-track district hearing their cases refused to consider imposing a sentence below the guidelines. Mr. Reyes-Hernandez and Mr. Sanchez-Gonzalez’s cases were consolidated as they raised the same question—should the district court be able to consider fast-track disparities as part of their sentencing analysis?
Holding: The absence of a fast-track program and the resulting difference in the guidelines should not be categorically excluded as a sentencing consideration. (LEXIS, 20709, 41) The sentences of Mr. Reyes-Hernandez and Mr. Sanchez-Gonzalez were vacated, and the cases were remanded for re-sentencing consistent with the holding.
Summary: Many federal district courts near the border operate under “fast-track” programs to process unlawful re-entry cases. U.S. attorneys offer more lenient sentences in exchange for pre-indictment guilty pleas and waivers of appellate rights. According to the court, federal prosecutors have used such negotiated pleas since roughly 1994. In 2003, Congress formalized the practice as part of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today (PROTECT) Act of 2003. (Pub L. No. 108-21) Congress authorized the Attorney General to set up a district-by-district fast track program and to develop sentencing guidelines specifically for fast-track programs. Currently, a defendant in a fast-track district may be able to receive a lower sentence of up to four levels, than he/she would in a non-fast track district.(USSG §5K3.1) According to the Seventh Circuit as of 2008 there were 20 fast track programs in operation at district courts, and 16 of these districts use the procedure for illegal re-entry prosecution. (LEXIS 20709, 15) There are no fast-track programs in operation in the Seventh Circuit.
As to the question in hand, the court pointed out that there is no clear answer as to whether or not the absence of a fast-track program can be a factor in sentencing. The Supreme Court has not taken the opportunity to address it, and there are conflicting decisions amongst the circuits. The Fifth, Eleventh, and Ninth Circuits have held that the disparity is constitutional; the First, Third, and Sixth Circuits have held otherwise. The Department of Justice Sentencing Commission Report acknowledged that individuals in non-fast-track district receive disparate sentences, but discouraged non-fast-track districts compensating for the disparity through downward departures from the guidelines. (LEXIS 200709, 12)
Nevertheless, U.S. v. Booker, 543 U.S. 220, 2005 (Sentencing guidelines are advisory only), Gall v. U.S. 552 U.S. 38, 2007 (guidelines are not presumptively reasonable) and Vazquez v. U.S. 130 S. Ct. 1135 (2010)(courts do not need congressional directive in order to vary from the guidelines) all strongly point against the notion that district courts are bound to follow the guidelines.
The Seventh Circuit concludes that, “If Congress wanted to prohibit judges in non-fast-track districts from disagreeing with §5K3.1 based on policy, Congress could have issued such a directive in unequivocal terminology.”(LEXIS 20709, 33) Therefore district judges in the Seventh Circuit should treat §5K3.1 as a guideline not as a statute. Consequently, sentencing judges are permitted to consider a facially obvious disparity created by fast-track programs among the totality of the sentencing factors considered. However, the Seventh Circuit warned that districts should not interpret this to mean that they can operate as defacto fast-track courts.
Sherriff Joe Loses in the Ninth Circuit!
The U.S. Court of Appeals for the Ninth Circuit today ruled against Maricopa County (Arizona) Sheriff Joe Arpaio in a case involving the conditsions in the Maricopa County jails. No real surprise but expect the litigation losses to mount for America's Toughest Sheriff as his various civil rights and other cases percolate through the court system.
NILC Honors Munger, Tolles & Olson
From Linton Joaquin:
On October 21, the National Immigration Law Center will present its Legal Advocate award to Munger, Tolles & Olson LLP (MTO). Please allow me to introduce you to this truly visionary law firm, which I hope you’ll join me in celebrating later this month at NILC’s 4th Annual Awards Dinner:
For many years, Munger, Tolles & Olson has worked tirelessly to ensure that all members of our society have a fair day in court. Their legal efforts have resulted in significant advances for immigrants’ rights, and NILC has been fortunate to work with lawyers from the firm in a number of important cases. Here in Los Angeles, MTO lawyers fought to ensure that Southland immigrants applying for citizenship would no longer suffer interminable delays because of so-called FBI “name checks.” With their help, the plaintiffs in this lawsuit won a settlement ensuring the processing of their citizenship applications and the elimination of this major backlog to citizenship. Furthermore, over the past several years, MTO attorneys have worked to defend California's in-state tuition law, AB 540, against a litigation challenge.
Last May, Munger, Tolles & Olson did not hesitate to join a class-action lawsuit led by NILC and others against SB 1070, Arizona’s harsh anti-immigrant law. Their lawyers lent their expertise and spent countless hours working to ensure that immigrants and all Arizonans of color would not suffer the irreparable harm this unconstitutional law would cause.
For these reasons and so many others, this year NILC has decided to honor Munger, Tolles & Olson with its Legal Advocate award. I encourage you to join the celebration by sponsoring or purchasing tickets for the October 21 awards dinner to be held at the Millennium Biltmore Hotel in Los Angeles. Become a dinner sponsor or purchase a ticket today!
National Immigration Law Center
Final Debate in California Gubernatorial Race
California gubernatorial candidates Meg Whitman (Republican) and Jerry Brown (Democrat) engaged in a no-holds-barred debate, their final of three, last night at Dominican University of California.
As expected, each played to their strengths. Whitman had a much smoother performance (much like the first debate at UC Davis) than in the last debate at Fresno State, which was just days after the revelation about Whitman's employment of an undocumented Latina domestic service worker, where she was pilloried on immigration on Spanish language television.
Jerry Brown emphasized his support for comprehensive federal immigration reform and cooperating with the federal government in deporting criminal aliens as well as his opposition to an exploitative guest worker program (at least one that did not allow for a path to permanent resident status). He also glibly mentioned that Whitman fired her undocumented employee after nine years and did not even help get her a lawyer!