November 19, 2011
Does the Prosecutorial Discretion Enforcement Memo Fall Short?
We have reported that ICE has issued more guidance on prosecutorial discretion this week. But will the guidance really help low priority cases? Here's an interesting, bad twist out of Arizona:
Terry Greene Sterling writes in the Daily Beast:
Gabriel Valdez had high “high hopes” for his undocumented immigrant clients in June, when John Morton, the director of U.S. Immigration and Customs Enforcement, issued a memo directing agents and prosecutors to use their “discretion” to focus resources on deporting the bad guys—immigrant terrorists, criminals, and other undocumented ne’er-do-wells—instead of booting out otherwise law-abiding unauthorized immigrants ensnared in the nation’s troubled immigration system.
After the Morton memo was released, Valdez, a Phoenix attorney who defends unauthorized immigrants in state and federal court, anticipated fewer deportations of his undocumented clients who’d been caught in workplace raids and convicted of state felonies associated with carrying fake work papers. Instead, he discovered, these clients faced a greater risk of deportation in the wake of the memo.
The reason: In Arizona, county prosecutors used the Morton memo to their advantage by offering his clients “only plea bargains that would result in [swift] deportation.”
Although immigrants tend to commit fewer crimes than the native-born, the feds have long deported hard-core criminals after they serve their time in state or federal prisons. But in Arizona, Valdez’s unauthorized immigrant clients are not typical hard-core criminals; they have been charged with state felonies tied to working with bogus papers. Immigrant advocates call such felony charges the "criminalization of work."
Now immigration attorneys are questioning whether their clients will be helped or harmed by the Obama administration’s latest directives, which are based on the Morton memo and followed Thursday’s announcement that authorities have launched an ongoing review of about 300,000 incoming and pending deportation cases. Federal officials also will train agents and prosecutors on “prosecutorial discretion” and launch two “pilot programs” in early December to test how well the Morton memo is working. In a statement, ICE spokeswoman Gillian Christensen called it “smart and effective immigration enforcement” that targets “criminal aliens and those who put public safety at risk, as well as those who threaten border security or the integrity of the immigration system.” Read more....
Chancellor Merkel Wants to Ban Anti-Immigrant Party
A series of unsolved murders, bombings, maimings and bank robberies have been gradually connected over the past four days with a trio who called themselves the National Socialist Underground.
"That is a disgrace. That shames Germany. We will do everything possible to investigate it," said Merkel in Leipzig, addressing a conference of her party, the Christian Democratic Union.
With Merkel's blessing, senior officials drafted a resolution that would make it CDU policy to resume legal efforts to outlaw the National Democratic Party, or NPD, an anti-immigrant group which has won seats in state assemblies but never in the federal parliament. Read more...
November 18, 2011
ICE Detains Alabama DREAMers Contravening DHS Public Statements
Although DREAMers should be among those regarded as "low priority" by DHS in its stated goal of detaining and deporting only dangerous criminals and suspected terrorists, it's actual practice seems to belie the public announcements by ICE. Julianne Hing, writing for Colorlines submits this story that includes an interview with DREAMers in detention in Alabama:
When the cameras aren’t rolling and the nation’s not looking on, does the Obama administration abide by its own deportation policies?
The answer, undocumented immigrants have long said, is a definitive “no.”
Last week two undocumented, DREAM Act-eligible immigrant activists presented themselves to immigration agents in Mobile, Alabama, and were subsequently put in detention and placed in deportation proceedings, to prove exactly that point.
“We want to reveal the truth and show [Immigration and Customs Enforcement] for what they really are, as a rogue agency which has no accountability while they separate families,” Jonathan Perez, a 24-year-old activist from Los Angeles told Colorlines.com from the South Louisiana Correctional Center. Perez and 20-year-old Isaac Barrera had been transferred to the facility this week.
“[The Department of Homeland Security] continues to lie. Obama continues to lie. This is our way of exposing the truth,” Perez said.
Perez and Barrera announced their detainment a day after 13 undocumented immigrant activists who organized a highly publicized civil disobedience action in the Alabama statehouse earlier this week were released. Activists were arrested yesterday after protesting Alabama’s HB 56, the nation’s harshest anti-immigrant state law in the very building where it was crafted. This group was comprised of activists with the identical profile as Perez and Barrera—young people who immigrated to the country as children and had no criminal convictions on their record.
In keeping with its public line to prioritize the removal of an expanding set of undocumented immigrants—those with serious criminal convictions as well as prior deportations on their record—the Obama administration has had a strict hands-off approach when it comes to undocumented immigrant youth and the civil disobedience actions they’re by now well known for. There have been dozens of arrests in the last two years, but ICE has never prosecuted or moved to detain and deport any of these young people.
“ICE has not lodged detainers at this time,” confirmed ICE spokesperson Temple Black. ICE did not respond to inquiries about why they chose this course of action.
Yet, away from the media spotlight, immigrant activists say the Obama administration has another agenda entirely. And that agenda’s got a mandate to deport immigrants at a breakneck speed — even if the folks they deport do not fall within the agency’s own definition of those who are a high priority for removal. Since he’s been in office Obama’s deported nearly 400,000 people every year, far outpacing the deportation rate of every other president before him and every year toppling his own records. The enforcement strategy continues in the face of an congressional impasse over immigration reform. Read more....
Amicus Briefs Will Flood the Supreme Court in U.S. v. Arizona
Amicus brief of American Unity Legal Defense Fund
Amicus brief of American Civil Rights Union
Amicus brief of Landmark Legal Foundation
Amicus brief of Members of Congress and the Committee to Protect America's Borders
Amicus brief of Center for Constitutional Jurisprudence
Amicus brief of U.S. Border Control
Amicus brief of Michigan and Ten other States
Amicus brief of Mountain States Foundation
Amicus brief of Cochise County Sheriff Larry A. Dever (forthcoming)
Amicus brief of Thomas More Law Center
Amicus brief of Justice and Freedom Fund
Amicus brief of Arizona State Legislature
The U.S. government's brief in opposition is due soon. Stay tuned!
November 17, 2011
DHS Guidance on Prosecutorial Discretion Issued
As mentioned on the blog earlier today, DHS would be issuing guidance on prosecutorial discretion.
From the American Immigration Council:
DHS Issues Awaited Guidance on Prioritizing Deportations, Law Enforcement Letter Praises Approach
Washington D.C. - Today, Immigration and Customs Enforcement’s (ICE) Principal Legal Advisor directed all ICE attorneys to begin a systematic review of immigration cases to determine whether pursuing deportation in each case is consistent with the Administration’s enforcement priorities. This directive follows last summer’s announcement that the Department of Homeland Security (DHS) plans to review 300,000 immigration cases to assess whether they fall within the enforcement priorities and suspend those cases which do not. ICE also provided more detailed guidance to ICE attorneys regarding criteria for determining when it is appropriate to exercise prosecutorial discretion to close or dismiss a case.
These directives are important steps toward reforming the culture of immigration enforcement within the agency and aligning its resources with its enforcement priorities. They empower ICE attorneys to take into account the individual circumstances of each case when deciding whether it is appropriate to pursue removal. Although DHS needs to refine its overly-broad definitions of criminality, this new guidance, if fully implemented, should mean that the government can focus its resources on deportations of those who pose a real threat to public safety. It should result in fewer deportations of low priority immigrants, such as DREAM Act students or individuals with strong family and community ties and more. Importantly, prosecutorial discretion does not mean that a person is granted legal status in the United States; rather, a person whose case is dismissed or closed will remain in the status they were in prior to the initiation of deportation proceedings.
The new ICE guidance also brings DHS more in line with traditional law enforcement practices, which emphasize the important role of discretion in carrying out any law enforcement officer’s duties. In fact, members of a DHS Task Force sent a letter today to Congress highlighting the importance of prosecutorial discretion as an immigration enforcement tool. They write:
“there is nothing unusual in our recommendation or in DHS’s current efforts to improve its use of prosecutorial discretion. Such discretion is a normal and essential part of the everyday activities of law enforcement agencies and prosecutors’ offices at the local, state, and federal levels across the nation. Exercising prosecutorial discretion, case by case, in a systematic and professional way, does not amount to administrative amnesty. Instead it helps to make sure that resources are focused in ways that best promote the overall enforcement mission.”
The Immigration Reform and Control Act at 25
Muzaffar Chishti, Doris Meissner, and Claire Bergeron report on the 25th anniversary of the signing of the Immigration Reform and Control Act (IRCA) and the impact that law has had on past and present immigration policies. IRCA, signed into law by President Ronald Regan, was the last successful attempt at comprhensive immigrtaion reform.
Prosecutorial Discretion Process Finally Getting Implemented?
DHS has announced that the process of reviewing pending deportation cases for possible dismissal under prosecutorial discretion guidelines announced this summer will begin today. However, what about those low priority cases that have final orders of removal and who have been ordered to leave or are awaiting bag and baggage letters? Don't they deserve review as well?
Julia Preston writes in the NY Times:
The Department of Homeland Security will begin a review on Thursday of all deportation cases before the immigration courts and start a nationwide training program for enforcement agents and prosecuting lawyers, with the goal of speeding deportations of convicted criminals and halting those of many undocumented immigrants with no criminal record.
The accelerated triage of the court docket — about 300,000 cases — is intended to allow severely overburdened immigration judges to focus on deporting foreigners who committed serious crimes or pose national security risks, Homeland Security officials said. Taken together, the review and the training, which will instruct immigration agents on closing deportations that fall outside the department’s priorities, are designed to bring sweeping changes to the immigration courts and to enforcement strategies of field agents nationwide.
According to a document obtained by The New York Times, Homeland Security officials will issue guidelines on Thursday to begin the training program and the first stages of the court caseload review. Both are efforts to put into practice a policy senior officials had announced in June, to encourage immigration agents to use prosecutorial discretion when deciding whether to pursue a deportation.
The policy, described in a June 17 memorandum by John Morton, the director of Immigration and Customs Enforcement, suggested that the Obama administration would scale back deportations of illegal immigrants who were young students, military service members, elderly people or close family of American citizens, among others. While the announcement raised excited expectations in Latino and other immigrant communities, until now the policy has been applied spottily, deepening disillusionment with President Obama in those communities. Read more...
Immigration Judge Must Remain Neutral and Not Assume Role of Opposing Counsel
Abulashvili, et al. v. Attorney General of the U.S.
Issue(s) Presented: Whether the BIA erred in dismissing Petitioners’ asylum application. Whether the BIA erred in denying a Motion to Reopen. Whether Petitioners’ due process rights were violated during the immigration proceedings.
Brief Summary: On Petition for Review of an Order of the Board of Immigration Appeals (“BIA”), Petitioners sought review of an order dismissing their application for withholding of removal and protection under the Convention Against Torture (“CAT”) and an order of the BIA denying their motion to reopen. In his asylum application, Petitioner Abulashvili claimed that he had been persecuted in Georgia on account of his membership in the opposition Labor Party of Georgia (“LPG”) and his knowledge of government corruption as determined from events in September 1998. At that time, Abulashvili had, according to his application, witnessed a shooting and been subjected to police and governmental threats and intimidation. During his removal proceedings, Abulashvili conceded the charge of removability but sought relief based on his past persecution and fear of future persecution. First focusing on the adverse credibility determination and Motion to Reopen, after a full review of the transcripts and records of the case, the Court found the determination was not supported by substantial evidence. The Court noted that Abulashvili’s difficulty with the English language and inability to accurately communicate was not taken into consideration and may have negatively impacted his ability to communicate clearly in his application. The Court further noted that the Immigration Judge misread the asylum application which contradicted her findings regarding it. Finally, the Court noted that the Immigration Judge relied on minor inconsistencies and her findings were contradicted by the record as a whole. Next turning to the due process claim, the Court noted that on cross-examination, an attorney for the government, who was “woefully unprepared,” had confined his questioning based on his lack of understanding of the facts. The Immigration Judge then interjected herself and took over the cross-examination, asking 87 questions. Explaining that an immigration judge has a responsibility to remain neutral, the Court determined that Petitioner was denied a full and fair hearing by a neutral and impartial arbiter of the merits of his claim when the Immigration Judge assumed the role of opposing counsel. Accordingly, the Court granted the petition for review, vacated the BIA’s orders, and remanded the case to the BIA for further proceedings. http://www.ca3.uscourts.gov/opinarch/082756p.pdf
November 16, 2011
Priority Date Calculator
The Silicon Valley Community Foundation created a great, new priority date calculator. With it, you can enter a country, preference category and priority date to see if you are eligible to adjust status yet. If not, you can receive monthly email alerts about your status or an email when you are eligible. It’s on a public website, so clients can also be referred to use it themselves. Click here to access the calculator.
U.S. Files Brief in Appeal to Challenge to Alabama Immigration Law
CNN reports that the U.S. government filed its brief in the Eleventh Circuit in its challenge to the Alabama immigration law. "The brief asks the appeals court to block six parts of the Alabama law, including a provision requiring police to check immigration status during traffic stops and a measure requiring schools to determine the immigration status of students."
Oral arguments in the case have been scheduled for the week of February 27.
The Justice Department has also sued Arizona and South Carolina over their immigration laws, and reportedly is considering actions against Utah, Indiana, and Georgia.
Immigration from Mexico in fast retreat, data show
Census figures show that fewer people are leaving Mexico and many are returning to Mexico as a lack of jobs in the U.S. and tighter border enforcement dissuade many who might have entered illegally. No surprises really given the state of the American economy. Read more in this L.A. Times article by Ken Ellingwood.
Immigration Article of the Day: Padilla v. Kentucky: A New Chapter in Supreme Court Jurisprudence on Whether Deportation Constitutes Punishment for Lawful Permanent Residents? by Anita Ortiz Maddali
Padilla v. Kentucky: A New Chapter in Supreme Court Jurisprudence on Whether Deportation Constitutes Punishment for Lawful Permanent Residents? by Anita Ortiz Maddali Northern Illinois University College of Law, American University Law Review, Vol. 61, No. 1, 2011
Abstract: In this Article, I argue that the deportation of lawful permanent residents on account of a criminal conviction is punitive, and therefore enhanced constitutional protections must be afforded to lawful permanent residents during removal proceedings. To support this argument I rely, in part, on the Supreme Court’s recent decision in Padilla v. Kentucky. The Padilla Court held that counsel must inform a client when a plea carries the risk of deportation. The Court’s analysis throughout the decision is groundbreaking in its recognition of the modern day realities of deportation - specifically the growing relationship between the immigration and criminal justice systems and the ways in which criminal convictions and deportation have become enmeshed over the years. The Court’s language provides support for the argument that deportation may not be a remedial exercise by the government to enforce immigration laws - as the Court has held for over a century - but may in fact constitute punishment. If deportation is recognized as punishment, then additional constitutional protections, like the right to counsel, must be afforded to lawful permanent residents who are in removal proceedings on account of criminal convictions. This Article is novel in two respects. First, it offers a fresh look at the punitive nature of deportation, using the Padilla decision, and other case law, to bolster this argument. Second, this Article suggests that the analytical approach used by the Supreme Court in its juvenile delinquency jurisprudence, which extended greater constitutional protections to juveniles during the adjudicative stage of delinquency proceedings, could provide the framework for determining which protections should be afforded to lawful permanent residents who are in removal proceedings on account of a criminal conviction. Like deportation, juvenile delinquency proceedings have been labeled civil, but the Court has recognized that because a finding of delinquency could result in incarceration, the Due Process Clause requires additional protections during these proceedings. Similarly, lawful permanent residents face the risk of being removed from their country of permanent residence—this results in separation from family and removal from a person’s home. As such, due process requires the need for additional protections.
Hofstra Law Immigration Law and Border Enforcement Program
The Global Initiatives & Multicultural Affairs Office is delighted to announce the 2nd Annual Immigration Law and Border Enforcement Program. This is a rather new internationally minded intensive program co-sponsored by Hofstra Law School and the National Center for Border Security & Immigration, a U.S. Department of Homeland Security Center of Excellence. The program will be taught on campus at the University of Texas, El Paso and students will stay at the Hilton Garden Inn.
An information session to meet the faculty and former students of the program will be held on campus at Hofstra Law School on October 17 from 5 to 6 p.m. Information will be distributed by email to students with the location.
Click the link above for more information.
We're No. 1? Latinos Surpass Blacks Living in Poverty, Census Study Shows
Chris Levister in New America Media writes that 16 percent of Americans liveg in poverty, according to the latest U.S. Census data. "The official poverty level is nearly 1 percentage point lower. The much anticipated economic data show more Hispanics, elderly and working-age poor have fallen into poverty. For the first time, the share of Hispanics living in poverty surpassed that of African-Americans . . . ."
November 15, 2011
Laugh Break: Saturday Night Live on the Republican Presidential Debates
BARRIERS AND INNOVATIONS IN CIVIL RIGHTS LITIGATION SINCE 9/11: PRACTICAL AND THEORETICAL PERSPECTIVES: University of Texas School of Law, February 3, 2012
About the conference:
The ten years since the attacks of 9/11 and range of government responses have featured two important and competing trends in the arena of civil rights damages litigation. On the one hand, federal civil rights remedies have been increasingly deployed to address alleged government overreach across a broad range of substantive arenas – expanding beyond, for example, traditional domestic policing to address immigration and national security policy. At the same time, the Supreme Court has increased and added to the range of remedial barriers to successfully litigating such actions – including expansion of immunities doctrines, constriction of the Bivens remedy, and a variety of informational barriers flowing from putative secrecy concerns. This conference will bring together leading civil rights litigators, advocates, and scholars in criminal justice, racial justice, immigration, and national security to explore the confluence of these trends across substantive areas, discussing both concrete litigation strategies as well as the broader practical and theoretical context in which these remedial barriers operate. The day will consist of three panels addressing immunities, Bivens doctrine, and privileges and secrecy, as well as a lunchtime keynote address.
Keynote speaker: Susan Herman – President of the American Civil Liberties Union, chaired professor of law at Brooklyn Law School, and author of the recently published Taking Liberties: The War on Terror and the Erosion of Democracies
• Sharon Bradford Franklin – Senior Counsel, Constitution Project
• Lee Gelernt – Deputy Director, ACLU National Immigrant Rights Project
• Lisa Graybill – Legal Director, ACLU of Texas
• Jim Harrington – Director, Texas Civil Rights Project
• Seth Kreimer, Professor of Law, University of Pennsylvania Law School
• Jennifer Laurin – Assistant Professor, University of Texas School of Law (Conference Organizer)
• Javier Maldonado – Law Office of Javier N. Maldonado, PC
• Rachel Meeropol – Staff Attorney, Center for Constitutional Rights
• Ranjana Natarajan, Clinical Professor, Director, National Security Clinic, University of Texas School of Law
• John Preis – Associate Professor of Law, Richmond Law School
• Alexander Reinert – Associate Professor of Law, Cardozo Law School
• Stephen Vladeck – Professor of Law, American University Washington College of Law
Conference registration and general contact: To register for the conference and for additional information, contact Rachel Sidopulos, Center Administrator, William Wayne Justice Center for Public Interest Law, at firstname.lastname@example.org, (512) 232-6277(phone).
"Advocates for open borders and illegal alien amnesty must be pleased" with the Obama Administration?
"Advocates for open borders and illegal alien amnesty must be pleased. President Obama has accomplished almost everything on their Wish List, short of a massive amnesty bill. But the president’s checklist achieves almost the same thing, of course without Congressional approval. Public demand for secure borders and interior enforcement has been ignored while Congress’s constitutional authority to regulate immigration has been simply bypassed. To date, the scope of President Obama’s immigration to-do list is shocking and nearly complete."
Do you agree? Of course, ImmigrationProf has expressed a very different take on the Obama administration's immigration deeds.
Guest posts welcome.
Immigration Article of the Day: Internal Migration in the United States
"Internal Migration in the United States" FEDS Working Paper No. 2011-30 RAVEN MOLLOY, Federal Reserve Board. ABIGAIL WOZNIAK, University of Notre Dame, Institute for the Study of Labor (IZA). CHRISTOPHER L. SMITH.
ABSTRACT: We review patterns in migration within the U.S. over the past thirty years. Internal migration has fallen noticeably since the 1980s, reversing increases from earlier in the century. The decline in migration has been widespread across demographic and socioeconomic groups, as well as for moves of all distances. Although a convincing explanation for the secular decline in migration remains elusive and requires further research, we find only limited roles for the housing market contraction and the economic recession in reducing migration recently. Despite its downward trend, migration within the U.S. remains higher than that within most other developed countries.
Guest Post: Jacelyn Thomas, Alabama’s Immigration Laws Prove Economically Inefficient
When Alabama’s immigration law, HB 56, was signed earlier this year, criticism largely focused on civil rights. Critics argued that the law was racist and would pave the way for mass racial profiling. Creating such intense fear and anxiety among the Latino community, the law would dissuade immigrant children from attending school, and would also create a public health and safety crisis. As the measures in HB 56 go into effect, the anti-immigration law has spectacularly failed even on its intended purpose—to spur economic growth.
The Center for American Progress published some of the economic losses that the state of Alabama has experienced as a directly result of HB 56. The article notes that two farmers in Alabama, an agriculturally-centered state, have reported net losses in the hundreds of thousands because of labor shortages occurring shortly after the law went into effect. CAP also noted that in 2010, undocumented immigrants paid approximately $130 million dollars in income, state, local, property, and consumption taxes, a sum that would decrease significantly as more and more immigrants flee the state.
A recent Businessweek article written by Elizabeth Dwoskin and widely circulated on the Internet, investigated in-depth the frustration that Alabama’s farming, hospitality, and construction industries are experiencing in the wake of labor shortages induced by the state’s strict immigration policies. Theoretically, HB 56 was intended to recover supposedly “stolen” jobs from native-born Americans. Now that thousands of undocumented immigrants have left the state, employers have been encouraged to seek natives to fill the labor gap, with little luck. Echoing the sentiments of many Alabaman farmers, farm owner Joey Bearden is quoted in the Businessweek article as saying:
“The governor stepped in and started this bill because he wants to put people back to work—they’re not coming...I’ve been farming 25 years, and I can count on my hand the number of Americans that stuck.”
There are various reasons why, according to Dwoskin, native-born Americans will not fill these jobs, and some of these reasons are not quite as obvious. A more commonly cited reason is that typical immigrant jobs do not pay rates that Americans are willing to accept. According to proponents of HB 56, the law will eventually force farmers to higher their wages, and will affectively stop the wages exploitation inherent in immigrant work.
But a few things complicated this hope for HB 56—farmers will not be able to afford increasing wages for natives, especially in the face of competition from states and countries where labor is cheap and abundant. What’s more, even if wages were increased a few dollars above minimum wage, Princeton University sociologist Doug Massey suggests that it is more than the nature of the work and the wages that keeps Americans away. A lot of it has to do with the stigma attached to jobs that are associated with immigrants.
While there is no clear-cut answer to economic problems that Alabama faces after instituting its harsh immigration laws, it has become more than clear that HB 56 is, as an Alabama University economics professor considers it, “economically absurd.”
November 14, 2011
The crisis in the immigration courts
Read about the crisis in this American Judicature Society editorial.