November 13, 2010
Defying Trend, Canada Lures More Migrants
Jason DeParle for the N.Y. Times has a story reminding us of the relative immigration openness of Canada. Unlike the United States, DeParle writes, "there is no such thing in Canada as an anti-immigrant politician. Few nations take more immigrants per capita, and perhaps none with less fuss."
In the 1960s, Canada created a point system that favors the highly skilled and abolished provisions that screened out nonwhites. "Relative to its population, Canada takes more than twice as many legal immigrants as the United States."
Immigrants in Canada are viewed not as a social problem but as critical to economic growth. And there is competition for them. Check out this website attempting to woo immigrants to the province of Manitoba in the heartland of Canada
November 12, 2010
Hazelton's Costly ($2.4 Million) Immigration Lesson
The U.S. Court of Appeals for the Third Circuit has upheld a district court decision requiring the City of Hazelton, PA to pay $2.4 million in attorneys fees and costs to the Plaintiffs instead of their insurance carrier. The Plaintiffs (Pedro Lozano, Casa Dominicana of Hazleton Inc., Hazleton Hispanic Business Association and the Pennsylvania Statewide Latino Coalition) recently prevailed in their challenge to Hazleton's controversial immigration law.
More on DREAMer Steven Li
Here's more on the imminent deportation of DREAMer Steven Li from Julianne Hing of Cololines:
The very same week that Senate Majority Leader Harry Reid announced he would attempt to add the DREAM Act as an amendment to the defense authorization bill, Immigration and Customs Enforcement was readying itself to take a DREAM Act-eligible youth into custody for deportation. Days later, while the Senate preened and postured in D.C. over a failed move to pass the DREAM Act in September, a family on the other side of the country was being torn apart.
On September 15, ICE arrived at 20-year-old Steve Li’s San Francisco home and took him into custody for his deportation to Peru, where Li was born but has no relatives or contacts. And now, despite a months-long public campaign to keep Li in the country, Immigration and Customs Enforcement announced he’ll be deported next Monday, his attorney Sin Yen Ling confirmed, unless California Sen. Barbara Boxer steps in to issue a private bill on his behalf.
For many people, Li’s story is not unfamiliar: Li’s parents, who face their own removal order, immigrated to Peru from China in the 1980s, partially to help Li’s aging grandparents and partially to escape China’s one-child policy. And there Li was born, before his family immigrated again in 2002 to the U.S. to escape political instability in Peru. His family filed for political asylum in the U.S. but were denied. A judge put out a removal order for their family in 2004, which Li’s parents quietly tried to ignore, all unbeknownst to Li.
In the meantime, Li made the Bay Area his home. He went to school, made friends, enrolled in community college in San Francisco to pursue his plans to become a nurse. Li volunteered at his church and at San Francisco General Hospital. “I told him hopefully he would finish studying here in the U.S. and give back to the country,” his mother Maria Ma Li told the San Francisco Chronicle.
When ICE arrived on Li’s doorstep on September 15 to take him and his parents into custody, he had no idea why they were there. He was transferred to a detention facility in Florence, Arizona, and has since been washing dishes for a dollar a day so he can pay for stamps for letters and phone calls back home.
“I thought it was a mistake,” Li told the Contra Costa Times over one of those phone calls. “I’ve been living (in the United States), studying here. I feel like I’ve been here all my life. All my friends, my teachers, my family is here.” Read more.
Presidential Pardons and Immigration Law
Samuel Morison, Appellate Defense Counsel Office of the Chief Defense Counsel Office of Military CommissionsI has posted “Presidential Pardons and Immigration Law,” forthcoming in the Stanford Journal of Civil Rights and Civil Liberties (2010)) on the Social Science Research Network. Here is the abstract:
Despite a rich history of doctrine and practice defining the contours of the President’s authority under the Pardon Clause, both the federal courts of appeals and the Board of Immigration Appeals remain systematically confused about the immigration consequences of a presidential pardon. Most importantly, there is a widespread consensus that Congress is free to define the circumstances under which any pardon, state or federal, will waive a criminal conviction as a ground of removal, because of its inherent authority over immigration matters. The existing academic literature has not seriously challenged the validity of this conventional view, even though it has no basis in the Supreme Court’s Pardon Clause jurisprudence, which establishes that the President’s exercise of the clemency power is not limited by the generally applicable terms of the existing statutory framework, much less by deliberate attempts at legislative restriction. Moreover, a presidential pardon does not merely relieve the grantee from punishment in the technical constitutional sense, but also removes the collateral disabilities imposed by reason of the commission or conviction of the pardoned offense, including those arising under the immigration laws. Accordingly, a presidential pardon defeats the use of any federal offense as a ground of removal, notwithstanding the contrary terms of the INA’s pardon waiver provision. Finally, because the existing waiver statute subjects federal and state pardon grantees to disparate treatment for immigration purposes, I conclude that the courts should reconsider the equal protection implications of the current pardon waiver regime.
DREAM Act Student May Be Deported on Monday
Jessica Kwong writes for the SF Chronicle:
When Steve "Shing Ma" Li saw he had a message waiting from his lawyer Thursday evening, he was hoping for good news.
The 20-year-old San Francisco City College student has kept in touch daily with his lawyer and mother since he was taken to a detention center in Florence, Ariz. He knew that they, along with thousands of others, had been advocating against his deportation to Peru.
But his lawyer's voice gave it away. He wouldn't be getting the news he'd wanted.
"I couldn't believe it," Li said of the phone call with his lawyer Sin Yen Ling. "She told me I might be getting deported on Monday."
Ling heard Wednesday that a plane ticket to Peru had been booked for Li.
"I'm afraid to believe it; I don't believe it," Li's mother, Li Maria Ma, 50, said, dabbing her eyes and blowing her nose through a stack of paper towels Thursday afternoon. "There are so many people that did so much to help Steve stay in San Francisco, his home."
Li's family was arrested Sept. 15 because they were allowed to stay in the United States only through the end of 2002, and his family's case for political asylum was denied. His parents, who were born in China, were released from custody and are being electronically monitored by immigration officials. Click here for more.
Will Migrants Gain Respect?
From Frontera NorteSur Feature
Will Migrants Gain Respect?
Countering racism. Ratifying the Migrant Workers Convention. Doing away with exploitative guestworker systems. Assuring the rights of migrant domestic workers. Regularizing “irregular” migrants. Special protections for women and child migrants. Treating migrant remittances as an income emergency brake rather than an economic engine. Helping Haiti in its time of dire need.
All the above were on the list of the proposals that emerged from the Civil Society Days of the Fourth Global Forum on Migration and Development (GFMD) held this week in Puerto Vallarta, Mexico.
Attended by more than 400 delegates from 80 nations, the GFMD was billed as a major meeting examining the situation of the world’s nearly 215 million international migrants, according to recent numbers from the United Nations Department of Economic and Social Affairs Population Division.
In a report prepared for national governments also meeting in the same venue this week, delegates criticized the political and economic climate confronting international migrants, and denounced the massacre of 72 Central American and South American migrants in the northern Mexican state of Tamaulipas earlier this year.
“Civil society decries rising xenophobia that scapegoats migrants for broader societal and economic problems that are not of their making,” the GFMD delegates stated.
Deploring the “heavy emphasis on security,” the civil society report blasted militarization, detention, border controls and deportation.
“We urge governments to explore alternatives to detention that are not only more humane but cost less as well,” the report declared. “Children should not be detained under any circumstance.”
Hosted for the first time by the Mexican government, the GFMD was organized by the private BBVA Bancomer Foundation. Other named sponsors included the Spanish-owned BBVA Bancomer bank, MacArthur Foundation, Swiss Agency for Development and Cooperation, and Oxfam Mexico.
Separtely, President Felipe Calderon and First Lady Margarita Zavala attended the Civil Society Days of the GFMD. Security was extremely tight, as Mexican troops with heavy-caliber machine-guns and Jalisco state police in military-style uniforms ringed the Puerto Vallarta International Convention Center where the event was held.
Attendees were forced to pass through two police checkpoints, a metal detector and a bag search before entering the premises. Outside the sprawling conference hall on the edge of the resort town, Mexican soldiers scoured an adjacent estuary.
In prepared remarks that cited Mexican novelist Carlos Fuentes and his concept of “mestizaje,” or cross-cultural fusion, Zavala termed migration “fundamental” to the identity of a multicultural Mexico. She also stressed the need to protect and assist child migrants.
Echoing his wife’s previous remarks, President Calderon’s words credited migration for helping develop both his country and the “largest economy of the 20th century” north of the border, despite the hardships suffered by Mexican families.
The leader of a country which is under international scrutiny for the treatment of Central American and other migrants passing through national territory to the US, President Calderon detailed several accords Mexico has struck with Central American countries that are designed to regularize immigration.
“Today, migration is not and never will be a crime in Mexico,” Calderon insisted.
Other Mexican officials who attended the GFMD included Interior Minister Francisco Blake, Jalisco Governor Emilio Gonzalez and Puerto Vallarta Mayor Salvador Gonzalez among many others.
While each country has its own particular experiences with migration, common themes resounded at the GFMD’s Civil Society Days. For example, defending domestic workers from human rights abuses and applying international labor standards to an isolated, vulnerable segement of the workforce was an issue that galvanized delegates from across the world.
Instances of horrific treatment that range from rape to torture happen in “Manhattan and Kuwait,” said US labor organizer Ana Avendano in an interview with Frontera NorteSur.
Avendano, who serves as the assistant to the President of the AFL-CIO for immigration and community action, said the US Bureau of Labor Statistics does not keep numbers on domestic workers, but an estimated 200,000 people of different nationalities toil away in homes in the state of New York alone.
According to Avendano, the AFL-CIO is actively supporting an international campaign for the specific inclusion of domestic workers in the International Labor Organization (ILO), so household employees can enjoy the rights of other workers-the 8-hour day, social security and time for rest and relaxation.
“We expect that it should be adopted,” Avendano said. “Really, this year should be about fine-tuning the convention.” The Obama administration, she said, has taken a stand in favor of a convention for domestic workers in the ILO.
“Domestic work is a particular kind of work, not just because it takes place in the household, but also because of its fundamental importance in the very fabric of society,” states RESPECT, a European network of domestic worker groups and supporters. “Without provision for child-care, care for the elderly, cooking and cleaning, society simply couldn’t function.”
In the US, New York recently passed a law that applies basic labor standards to domestic workers, and the measure could open the door to organizing a heavily immigrant sector of the labor force, according to Avendano.
Nationally, the AFL-CIO is supporting independent domestic worker organizing efforts, Avendano added, as well as a new intitiative called the Excluded Workers Congress that brings together domestic workers, day laborers, taxi drivers, farmworkers, unemployable ex-felons, and other people at the margins of the economy.
International labor advocates gathered in Puerto Vallarta cautioned that resistance to incorporating domestic workers into the ILO is still felt from the governments of Canada, Indonesia and some European Union member states.
“Domestic workers are organizing themselves, but there really is a need to work with the trade unions and civil society,” said Rex Varona of the International NGO Platform on the Migrant Workers Convention.
A big issue swirling around the 2010 GFMD had to do with the role of the forum in formulating international migrant policies. Although it grew out of the United Nations in 2006, the GFMD is not a formal meeting of the world body. Organized on an ad-hoc basis, the forum serves as a sounding board and networking space for both non-governmental and governmental organizations.
Civil society representatives credited the Mexican government and GFMD organizers for making sure that this year’s forum allowed greater opportunities for interaction between governmental and non-governmental delegates, but it is unclear how much weight the non-binding recommendations emanating from the unofficial meeting will have on international migrant policy, or if they will even have an impact on the next UN high-level dialogue on migration scheduled for 2013.
“Civil society and diaspora groups don’t want the Global Forum to be a talk show,” insisted Ndidi Njokou of the United Kingdom-based African Foundation for Development.
The moderator for the Europe-Africa non-governmental group in Puerto Vallarta, Njokou maintained that a standing committee needs to be established to carry out the work of the GFMD between meetings, as well as “an evaluation process for our progress.”
A veteran of the first GFMD in 2006, Njokou said the international gathering has made progress in advocating for migrants. “It is improving as it goes along,” she told Frontera NorteSur. “It has kept improving throughout the years, but a lot remains to be done.”
Nonethless, some pro-migrant organizations from Mexico and other nations showed up in Puerto Vallarta to protest the GFMD. An e-mail sent by a member of the Mesoamerican Migrant Movement charged that the GFMD reeked of “illegitimacy” and only included “carefully selected” delegates whose expenses were paid.
At the entrance to the long jungle road leading into the Puerto Vallarta International Convention Center, a metal gate guarded by dozens of Jalisco state police officers barred protesters from the University of North Tamaulipas (UNT) who had made a time-consuming trek from the Mexico-US border to the Pacific Coast.
“In Mexico, we criticize the (US) border wall, but what do we have here?” questioned UNT Rector Francisco Chavira. “They don`t allow people who think differently to enter. The Mexican government is of the classist kind.”
As UNT students chanted “Racist Forum” far from the ears of GFMD delegates, Chavira sharply criticized the meeting as an exercise in demagoguery that “won’t do anything.”
Charging that corruption in the state and federal governments permitted the Tamaulipas migrant massacre to take place, Chavira insisted that human rights were not respected in Mexico.
According to media reports, Mexican authorities have detained at least eight people for committing the Tamaulipas massacre, while six other alleged complices reportedly perished in clashes with Mexican security forces.
Chavira and his students came to Puerto Vallarta with other grievances. The border educator urged his government to give Mexican consulates in the US the power to issue official identification cards to migrants for voting in Mexico. He demanded foreign-owned assembly plants in Mexico pay the equivalent of the US minimum wage, and called upon Mexican money transfer businesses like Banco Azteca and Elektra to return even a little portion of the profits they earn from remittances back to the families of migrant workers.
“The people inside don’t know about the migrant problem,” Chavira said. “This a light forum paid for by a private business, and coming from a private sector that benefits from migrant remittances and pays miserable salaries.”
Frontera NorteSur (FNS): on-line, U.S.-Mexico border news
Center for Latin American and Border Studies
New Mexico State University Las Cruces, New Mexico
USCIS Naturalizes Largest Number of Service Members Since 1955
Earlier this week, U.S. Citizenship and Immigration Services (USCIS) announced that in fiscal year 2010 it granted citizenship to 11,146 members of the U.S. armed forces at ceremonies in the United States and 22 countries abroad. According to USCIS, this figure represents the highest number of service members naturalized in any year since 1955. This number is a 6 percent increase from the 10,505 naturalizations in fiscal year 2009 and a significant increase from the 7,865 naturalizations in fiscal year 2008. Since September 2001, USCIS has naturalized nearly 65,000 service men and women, including those serving in Iraq and Afghanistan.
Australia refugee law case trumps government policy
The high court of Australia has issued a decision in favor of refugees in a much-watched case involving a legal distinction made between asylum-seekers who arrive by plane and those who come by ship. In the case, two Sri Lankan men held in detention had argued that laws barring appeal to the Australian courts were unfair.
Boat arrivals are placed in detention; their status is reviewed by contractors of the Immigration Department and if denied, they have had no right of appeal in Australia's courts. But those who arrive by plane are not automatically detained - and have the right of appeal if their claim to refugee status is denied.
The seven judges of the High Court of Australia unanimously ruled that the two Sri Lankan Tamil men were denied "procedural fairness." Attorney-General Robert McClelland said the ruling could force a change to current laws and policies.
For the complete BBC report on the case and its ramifications, click here.
Liberty and Justice for Some?: Implications of Recent Arizona Legislation Symposium
A video of the Arizona State Law Journal for Social Justice symposium last month is now on-line.
Analysis of Oral Arguments in Flores-Villar v. United States
On Wednesday, the United States Supreme Court heard oral arguments in Flores-Villar v. United States, a case involving a constitutional challenge to gender distinctions in the rules for derivative citizenship. Basically, children born overseas who have one U.S.-citizen parent can obtain U.S. citizenship if the citizen parent had been physically present in the U.S. for a certain period of time before the child’s birth. If the citizen parent is the father, the period is five years; if it is the mother, the period is one year. Does this differentiation amount to unconstitutional gender-based discrimination?
UC Davis law student Joanna Cuevas Ingram summarizes the oral argument and provides important insights. See Download Flores-Villar-JCI-Analysis It looks like it will be a close decision, with only eight Justices participating (Justice Kagan has recused herself).
November 11, 2010
Immigration Courts Taking Longer to Reach Decisions
During the past year, Immigration Courts took 20 percent longer to act on cases before them than they did the previous year, according to government data obtained by the Transactional Records Access Clearinghouse (TRAC). The average number of days it took to dispose of cases decided during FY 2010 was 280 days, 47 days longer on average than completion times for FY 2009.
Life And Death On The Border
The first episode of "Life And Death On The Border" that premieres is next Monday, November 15 at 9/8c on Current TV. Here is a preview of the season premiere. Adam Yamaguchi, Kaj Larsen, Christof Putzel and Mariana van Zeller, serve as trusted guides who take viewers on in-depth real life adventures in pursuit of some of the world's most important stories. We no doubt will hear some incredible -- but unfortunately all too real -- stories over the next three weeks.
Mid-Term Elections Dim Prospects for Reform
From the National Immigration Forum:
The mid-term elections saw Republicans picking up more than 60 seats in the House of Representatives, enough to give them control. The leadership change means not only does the Speaker of the House give up her gavel, but the chairmanship of all the committees and subcommittees change as well.
While it is too early to say what the precise makeup of the Committees will be, we do expect that the current top-ranking Republican members to assume leadership of the Committees having to do with immigration.
Judiciary Committee: Lamar Smith (R-TX): In the mid-1990s, Smith authored the law that became the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Among other things, this law included summary exclusion for persons arriving in the U.S. without proper documents; the three- and ten-year bars to admissibility for persons deported from the U.S.; the one-year asylum filing deadline; the electronic worker verification system that has evolved into today’s E-Verify; the 287(g) program; and a mandate for an annual increase in the Border Patrol and construction of a “triple-tiered” border fence. By greatly expanding the definition of “aggravated felony,” applying punishment retroactively, and severely restricting judicial review, the law has resulted in the removal of thousands of legal immigrants who have committed minor crimes.
In its original form, the law would have reduced legal immigration by taking out parents of U.S. citizens from the “immediate relatives” category and eliminating the category for brothers and sisters of U.S. citizens. (Smith’s effort to cut legal immigration was thwarted in the Senate.)
Smith has continued to be a tireless opponent of immigration reform and an advocate of more enforcement. Recently, Smith has supported the rights of states to enforce immigration laws, legislation to end birthright citizenship, and mandatory application of the E-Verify electronic worker verification system. See this member profile from the American Immigration Lawyers Association (AILA) and this article from Politico for more on Rep. Smith.
Regardless of any legislation he may try to advance, as Chair of the Judiciary Committee, Smith will be in a position to hold hearings where Administration officials will have to answer his charges that they are “ignoring” immigration laws. A recent column posted on his Web site includes some of the assertions about the Obama Administration’s enforcement of immigration laws that he may turn in to topics of oversight hearings.
Immigration Subcommittee: Steve King (R-IA): Representative King has been outspoken and extreme in his views about immigration. In 2006, for example, he delivered remarks on the floor of the House while building a model of a border wall that he felt should be built, including an electrified wire on top to act as a “disincentive for people to climb over the top or put a ladder there.” After all, according to King, “[w]e do that with livestock all the time.”
In an interview with Politico, King announced that he would like to see legislation to end birthright citizenship, to reaffirm states’ right to enact Arizona-like immigration laws, to take away deductions from employers who pay illegal immigrants, and to crack down on cities that don’t go after illegal residents.
For more information on Rep. King, see AILA’s member profile of him. You can read more of Rep. King’s choice words on immigration here.
Homeland Security Committee Peter King (R-NY): Representative Peter King is currently the ranking Republican on the Homeland Security Committee. There is a question as to whether King will be given the Chairmanship; the Republican caucus has term-limit rules for leadership of committees. Should he obtain a waiver to the rule, he told Congressional Quarterly that, regarding immigration, the Committee will push for legislation focused on “law enforcement both at the border and in the interior United States.”
Rules Committee: The House Rules Committee is the last stop for legislation before it is considered on the House floor. The Rules Committee decides the terms of debate on legislation. Unlike the Senate, where Senators can spend days considering amendments and hundreds of amendments may be considered, the Rules Committee in the House will decide which amendments will be considered before debate begins. The Rules Committee under Democratic leadership has been helpful by not allowing many amendments proposed by immigration hard-liners. (The amendments are often extraneous or "non-germane" to the bill being considered.) With leadership now in Republican hands, we can expect that more restrictionist amendments will be allowed on a variety of legislation unrelated to immigration that is debated in the House. David Dreier, currently the ranking member on the Committee, is expected to assume leadership. On his Web site, Dreier touts his sponsorship of H.R. 98, which would require all workers to present a Social Security card with machine-readable information establishing work authorization when they apply for a job. In the 110th Congress, he was a co-sponsor of a bill that would have, among other things, required the hiring of 18,000 more Border Patrol agents.
New Members: According to the Center for American Progress, of the more than 100 freshman Republicans of the 112th Congress, “39% have already declared their intention to end the 14th Amendment’s guarantee of birthright citizenship.” Almost a third want to reduce legal immigration.
Newly-elected members include Lou Barletta (R), who will represent Pennsylvania’s 11th District. As Mayor of Hazelton, he pushed through a local ordinance in 2006 to deny business permits to companies that employ undocumented immigrants, and to fine landlords who rent to them. (The law was later struck down as unconstitutional.) Rand Paul (R), the Senator-elect from Kentucky, said on his campaign Web site that he opposes “amnesty” and favors building “an electronic fence” along the Southwest border. He also favors ending birthright citizenship. Tea Party favorite Marco Rubio will be Florida’s new Senator. He is of Cuban-American descent, but has taken a hard line on immigration. On his Web site, he says that regarding immigration, he believes “that our nation’s immigration policy should consist of border enforcement, securing the border, fixing the visa process and ensuring that no law extends amnesty to illegal immigrants.”
State Governorships and Legislatures
In addition to the turnover in Congress, Republicans made big gains among State Governorships and legislatures. Of the 37 states that held gubernatorial elections, there were 29 Republican wins verses 18 Democrats. In state legislatures, Republicans added more than 675 seats to their ranks, and made some historic takeovers—for example, according to the National Conference of State Legislatures, Republicans now control the Minnesota Senate for the first time in history. The Republican tilt in state governments will affect the outcome of efforts to adopt state and local anti-immigration measures, including legislation modeled after Arizona’s SB 1070.
Prospects for Progress
While prospects for positive immigration reform legislation getting through the 112th Congress will be remote, any effort to enact hard-line enforcement-only legislation will face the same question that pro-reform advocates have faced in the 111th Congress: Are there 60 votes in the Senate? As the Washington Independent put it,
A Democratic Senate will have trouble getting immigrant-friendly measures past the House, while the House will have trouble getting enforcement-only measures past the Senate — or the president’s desk. The result will likely be more of the same on immigration policy.
Prospects for Republicans in the next election may be influenced by how prominently they feature the anti-immigration, enforcement-only agenda of immigration restrictionists in their party. Will Republicans allow Steve King and Lamar Smith to be the face of the Republican Party on the immigration issue? If so, they may feed a trend where Latinos—the fastest-growing portion of the electorate—have been migrating to the Democratic Party. In this election, Latinos in some key states voted overwhelmingly Democratic and helped Democrats retain control of the Senate. The use of immigration as a divisive wedge issue backfired in some very important races, motivating Latinos to go to the polls to punish the politicians who portrayed them as criminals. For more on how Latinos acted in this election, see this ImmPolitic blog post.)
Over the next two years, Republicans will have to decide whether they will continue to alienate Latino voters, or change their tune on immigration and offer real solutions for our broken immigration system, not divisive sound bites.
Latino Voters Made a Difference
From the Center for American Progress:
Latinos Make Their Mark: Their Midterm Votes Reward or Rebuke Candidates
By Angela Maria Kelley, Marshall Fitz, Gebe Martinez, Vanessa Cárdenas
Sen. Harry Reid (D-NV) defeated Sharron Angle to win re-election
Latinos strongly responded to the negative anti-immigrant and anti-Latino political discourse by turning out in large numbers to cast ballots in the midterm elections.
Their turnout protected incumbent senators in Nevada, Colorado, and California and decided the balance of power in the upper chamber.
Read more about how the Latino vote affected specific races here.
Celebrate Veterans Day: Remembering Our Immigrant Veterans: An Incalculable Contribution
Relatively Open Borders -- Not Harsh Immigration Restrictions -- Follow the True American Tradition by Aziz Rana
In "Relatively Open Borders -- Not Harsh Immigration Restrictions -- Follow the True American Tradition," Aziz Rana (Cornell) responds to the restrictionist chants of the Tea Party and its kindred spirits.
November 10, 2010
Santa Clara County Denied Opt-Out of S-Comm
FOR IMMEDIATE RELEASE
November 10, 2010
County of Santa Clara Denied Opt-Out of Immigration Enforcement Program
Federal Officials Say They Will Continue Operating the Secure Communities Program in the County’s Jail Against the County’s Will
SANTA CLARA COUNTY, CALIF.—The County of Santa Clara learned Tuesday that federal and state officials will block the County’s efforts to opt out of the Secure Communities Program, a federal program through which arrestee fingerprint data collected by local agencies is shared with Immigration and Customs Enforcement (ICE).
County officials say fingerprint sharing from Santa Clara County was turned on in May 2010, without approval from the Board of Supervisors or any other County official. After the County raised concerns about the program, Senior ICE official David Venturella, who directs the Secure Communities Program, sent a letter to County Counsel Miguel Márquez stating that ICE would meet with counties to discuss removing them from the program.
On September 28th, the County of Santa Clara Board of Supervisors voted unanimously to seek to remove the County from the information-sharing program.
“Our Board has serious concerns about this program. Contrary to how ICE has described the program, it does not target only violent, criminal aliens. Instead, people with no criminal records are being apprehended and deported for minor offenses like traffic violations,” said Supervisor George Shirakawa, Chair of the Board’s Public Safety and Justice Committee. “This program makes innocent people afraid of law enforcement. Our County does not want to be at the forefront of new immigration enforcement programs that will make us lose our residents’ trust.”
Secure Communities Director Venturella met with County Counsel Márquez on Tuesday. When Márquez informed Venturella that the County would like to be removed from the Secure Communities program, Márquez says Venturella went back on his word that counties would be allowed to opt out of the program.
“ICE now insists that there was never any avenue for the County to opt out,” Márquez said. “This is clearly inconsistent with our written communication with ICE, as well as what ICE has told the public and congressional representatives about this program.”
“When ICE repeatedly denied the obvious discrepancy between their past and present statements and made clear that they had not come to offer the County any meaningful options, we ended the meeting,” Márquez said. “It is clear that ICE is not interested in
hearing about the program’s impact on communities or engaging with localities in good faith.”
According to ICE reports, ICE has already arrested over 500 people in Santa Clara County through Secure Communities since it became operational in May, a quarter of whom had no criminal record.
In May 2009 the California Department of Justice entered into a Memorandum of Agreement with Immigration and Customs Enforcement (ICE) allowing for implementation of Secure Communities in California localities. Since then, the program has been deployed in 38 of 58 counties, including Santa Clara County.
The County of Santa Clara learned of Secure Communities in October 2009, when the Department of Correction (DOC) received an informational packet from the U.S. Immigration and Customs Enforcement (ICE). The packet included a set of Standards Operating Procedures for the program and a questionnaire regarding current booking practices in the County jail.
Based on its understanding that the program was voluntary, the County did not take any action or complete and return the questionnaire. However, in April of 2010, ICE notified the County that it was going to activate Secure Communities. When notified that the Board of Supervisors had not approved participation in this program, ICE stated that approval was not necessary, and activated the program in Santa Clara County on May 4, 2010.
The Board of Supervisors’ unanimous decision to opt out of Secure Communities followed extensive testimony by community members in August and September, as well as consultation with legal counsel and local law enforcement officials at public meetings.
Between May 4th and September 30th, ICE reported that Secure Communities in Santa Clara County led to:
523 people arrested or booked into ICE custody (133 – 1 in 4 – with no criminal record)
241 people removed from the United States (81 – 1 in 3 – with no criminal record).
Supremes Hear Arguments in Flores-Villar v. U.S.
The case of Flores-Villar v. U.S. was argued in the Supreme Court today. For links to the briefs in the case, as well as the transcipt to the oral argument, on SCOTUS Blog, click here. For an analysis of the case on Slate, click here.
For analysis of teh oral argument by Ruthann Robson on the Constitutional Law Prof blog, click here.
UNLV Law Clinic Wins Right to A-file in Removal Proceedings by Anne Traum
In Dent v. Holder, CA 09-71987 (9th Cir. Nov. 9, 2010), the Ninth Circuit ordered the Government to provide persons in removal proceedings a copy of the A-file. The case was briefed and argued by students in the Thomas & Mack Legal Clinic at UNLV, under the supervision of Associate Professor Anne Traum.
The issue arose in a long overdue appeal from a 2003 removal proceeding, in defense to which Dent claimed U.S. citizenship, a claim he was unable to substantiate without his A-file. A native of Honduras, Dent was adopted at age fourteen by a United States citizen in 1981. At the IJ’s request, he furnished proof of his adoption and his adoptive mother’s citizenship. He also asked the BIA for help in obtaining documents relevant to his citizenship claim, but got no response. The IJ and BIA rejected Dent’s citizenship defense and Dent was removed to Honduras. In 2008, while Dent was under indictment for illegal reentry, USCIS denied a naturalization petition filed on Dent’s behalf by his mother in 1982. Neither that petition nor another filed by Dent in 1986 had been provided to him, or disclosed to the IJ or the BIA, in the 2003 removal proceedings, despite the fact they were still pending at that time and were part of his A-file.
Citing the “mandatory access law” in 8 USC 1229a(c)(2)(B), the court held that Dent was entitled to his A-file in removal proceedings. The court rejected the Government’s argument that the A-file could only be obtained by FOIA request, noting that such a rule in removal proceedings would pose serious due process concerns. “The only practical way to give an alien access is to furnish him with a copy,” the court said. Though Dent asked for help in getting records, the court made clear that was not a “necessary precondition,” adding: “We are unable to imagine a good reason for not producing the A-file routinely without a request, but another case may address that issue when facts call for it.” For now, the court’s ruling appears to be broad, with production of the A-file as the default rule.
The court transferred the case to the district court in Arizona to resolve Dent’s citizenship claim.
Foreign Law in Oklahoma Courts
I am slightly embarrassed that it has taken me so long to post after the wonderful introduction I received a couple of months back. As many of you know, Oklahoma voters approved State Question 755, which prohibits state judges from looking to "the legal precepts of other nations or cultures," specifically, "the courts shall not consider international law or Sharia law." Yesterday, a federal judge issued a TRO, enjoining the state from certifying the election results for State Question 755.
Although not directly related to immigration, the passage of this State Question continues a recent nativist trend in Oklahoma, including the passage of a harsh immigration statute a couple of years ago. My colleague, Joe Thai, had this to say about State Question 755: "'[T]he ballot measure is "an answer in search of a problem. ...There is no plausible danger of international law or Sharia law overtaking the legal system,' Thai said in an e-mail to The Associated Press. He said courts only consider international law when deciding issues involving a federal treaty, a business contract or a will that incorporates international law. Thai said the ballot measure 'raises thorny church-state problems as well' and could even affect a state judge's ability to consider the Ten Commandments" since the Ten Commandments did not originate in the United States or Oklahoma.