Friday, May 25, 2012

Guest Post: Kristie Lewis, Housing discrimination a very real problem for immigrants

The search for fair housing is among the many challenges facing immigrants in the United States. Denying someone housing on the basis of their immigration status or simply because they appear “foreign” is discriminatory in the highest degree, but that doesn’t mean that the problem isn’t widespread throughout the country.

The nonprofit consumer advocacy organization Consumer Action recently reported that 70% of community groups in the US view housing discrimination as a very real and serious threat to minority groups, particularly among immigrants. The report states that immigrants are among the most disenfranchised of consumer groups who seek adequate housing, whether through owning or renting property. The information from the report was gathered from various community based organization throughout the country who work with the most underserved groups of people, including immigrants.

An uphill battle for immigrants seeking housing

The Consumer Action report goes on to outline the extent of the real and damaging discrimination facing immigrants, disabled peoples, and other marginalized consumers as reported by over 500 community based organizations. Nearly half of the community based organizations contacted for the report stated that housing discrimination was a very serious problem among immigrants, who struggle to address discriminatory actions taken against them due to crippling lingual, cultural, or social barriers. Moreover, many community based organizations voiced their frustrations in adequately addressing housing discrimination because the offense can be so difficult to identify. Moreover, some immigrant groups may not fully understand (or have access to) awareness initiatives promulgated by community based organizations.

The Consumer Action report had a few words of wisdom to offer those who are likely targets of housing discrimination. They warned renters to look out for racist or discriminatory ads (such as those explicitly asking or prohibiting a certain ethnicity to apply. They also warned that discriminatory landlords might try to “price out” immigrant applicants by raising the rent to unusually high rates, or they might try to convince an immigrant tenant to move out in hopes of raising the property value as an “immigrant-free” property. The problems for immigrant home buyers are equally daunting, as sellers might try to avoid selling to an immigrant by any means necessary in order to prevent them from purchasing a home.

Housing discrimination fought against in New Jersey

There is one recent story out of Plainfield, New Jersey that should uplift the spirits of those fighting against housing discrimination. Juan Cartagena writes about his case against a tenant of an apartment complex in Plainfield who sued the landlord because he suspected the landlord to be knowingly renting units to illegal immigrants. The tenant argued that landlords should be responsible for investigating the authenticity of a tenants immigration documents in order to prove that they are in the country legally. The defense argued that doing so would give landlords the same power as an immigration officer.

According to Mr. Cartagena’s article, the case, Bolmer vs. Connelly, ended when Judge Julio Fuentes of the U.S. Court of Appeals ruled in favor of the landlord, stating that renting property to a tenant is not something that could be regarded in such extreme and criminal terms. To be sure, this was a compelling case that showcases the complexities of immigration and discrimination within the context of housing.

Conclusion

In closing, I just want to emphasize the real that housing discrimination is a severely underreported problem for immigrants in America. Consumer Action was able to affirm that statement by surveying over 500 community based organizations, and it’s something that needs to be addressed with real and earnest legislative efforts. The immigrant community is too underserved in this country; taking steps to prevent discriminatory practices among home rentals and purchases will go a long way to protect them from unnecessary harm.

Byline: This is a guest post by Kristie Lewis from construction management degree. You can reach her at: Kristie.Lewis81 @ gmail.Com.

May 25, 2012 in Current Affairs | Permalink | TrackBack (0)

Guest Post: Kristie Lewis, Housing discrimination a very real problem for immigrants

The search for fair housing is among the many challenges facing immigrants in the United States. Denying someone housing on the basis of their immigration status or simply because they appear “foreign” is discriminatory in the highest degree, but that doesn’t mean that the problem isn’t widespread throughout the country.

The nonprofit consumer advocacy organization Consumer Action recently reported that 70% of community groups in the US view housing discrimination as a very real and serious threat to minority groups, particularly among immigrants. The report states that immigrants are among the most disenfranchised of consumer groups who seek adequate housing, whether through owning or renting property. The information from the report was gathered from various community based organization throughout the country who work with the most underserved groups of people, including immigrants.

An uphill battle for immigrants seeking housing

The Consumer Action report goes on to outline the extent of the real and damaging discrimination facing immigrants, disabled peoples, and other marginalized consumers as reported by over 500 community based organizations. Nearly half of the community based organizations contacted for the report stated that housing discrimination was a very serious problem among immigrants, who struggle to address discriminatory actions taken against them due to crippling lingual, cultural, or social barriers. Moreover, many community based organizations voiced their frustrations in adequately addressing housing discrimination because the offense can be so difficult to identify. Moreover, some immigrant groups may not fully understand (or have access to) awareness initiatives promulgated by community based organizations.

The Consumer Action report had a few words of wisdom to offer those who are likely targets of housing discrimination. They warned renters to look out for racist or discriminatory ads (such as those explicitly asking or prohibiting a certain ethnicity to apply. They also warned that discriminatory landlords might try to “price out” immigrant applicants by raising the rent to unusually high rates, or they might try to convince an immigrant tenant to move out in hopes of raising the property value as an “immigrant-free” property. The problems for immigrant home buyers are equally daunting, as sellers might try to avoid selling to an immigrant by any means necessary in order to prevent them from purchasing a home.

Housing discrimination fought against in New Jersey

There is one recent story out of Plainfield, New Jersey that should uplift the spirits of those fighting against housing discrimination. Juan Cartagena writes about his case against a tenant of an apartment complex in Plainfield who sued the landlord because he suspected the landlord to be knowingly renting units to illegal immigrants. The tenant argued that landlords should be responsible for investigating the authenticity of a tenants immigration documents in order to prove that they are in the country legally. The defense argued that doing so would give landlords the same power as an immigration officer.

According to Mr. Cartagena’s article, the case, Bolmer vs. Connelly, ended when Judge Julio Fuentes of the U.S. Court of Appeals ruled in favor of the landlord, stating that renting property to a tenant is not something that could be regarded in such extreme and criminal terms. To be sure, this was a compelling case that showcases the complexities of immigration and discrimination within the context of housing.

Conclusion

In closing, I just want to emphasize the real that housing discrimination is a severely underreported problem for immigrants in America. Consumer Action was able to affirm that statement by surveying over 500 community based organizations, and it’s something that needs to be addressed with real and earnest legislative efforts. The immigrant community is too underserved in this country; taking steps to prevent discriminatory practices among home rentals and purchases will go a long way to protect them from unnecessary harm.

Byline: This is a guest post by Kristie Lewis from construction management degree. You can reach her at: Kristie.Lewis81 @ gmail.Com.

May 25, 2012 in Current Affairs | Permalink | TrackBack (0)

Wednesday, May 23, 2012

From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant Communities and Beyond

Today, the Immigration Policy Center (IPC) and the Electronic Frontier Foundation (EFF) release From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant Communities and Beyond by Jennifer Lynch. The paper outlines the current state of U.S. government collection of biometric information and the problems that could arise from these growing databases of records. It also points out how immigrant communities are immediately affected by the way this data is collected, stored, and shared. There is a growing push to link biometric collection with immigration enforcement. The U.S. Department of Homeland Security (DHS) takes approximately 300,000 fingerprints per day from non-U.S. citizens crossing the border into the United States, and it collects biometrics from noncitizens applying for immigration benefits and from immigrants who have been detained. In addition, state and local law enforcement officers regularly collect fingerprints and DNA, as well as face prints and even iris scans. All of these government databases are growing and increasingly interconnected. For example, the Secure Communities program takes the fingerprints of people booked into local jails, matches them to prints contained in large federal immigration databases, and then uses this information to deport people.

KJ

May 23, 2012 in Current Affairs | Permalink | TrackBack (0)

The Supreme Court’s Immigration Decisions in the 2011 Term (Sans Arizona v. United States)

Supeme court

So far, the Supreme Court has issued four immigration decisions this Term. There will likely be five in total. Court watchers eagerly await the Court to decide Arizona v. United States, which has received the most attention by far of the Court's immigration decisions from the 2011 Term. Much more will be said, I am sure, when the Court decides that case, which could well have a dramatic impact on the future of the many immigration enforcement laws passed in recent years by state legislatures.

The Court’s four other immigration decisions, however, offer critically important insights about how the Court approaches more run-of-the-mill immigration cases that are the bread-and-butter of immigration law practice. In total, the decisions are firmly in the mainstream of constitutional, statutory, and administrative law jurisprudence.

The unexceptional nature of the Court's four immigration decisions may be surprising to students of immigration law who have been well-schooled in the “plenary power doctrine,” which historically has immunized substantive immigration law provisions from meaningful judicial review, and in fact represents an important deviation from mainstream constitutional law.

In a rather unexceptional – if not workmanlike -- fashion, the Court in the four non-Arizona immigration cases decided in the 2011 Term generally treats the review of immigration cases like it treats other the review of other agency actions.

Two of the four decisions were unanimous and written by Justice Elena Kagan, the most junior Justice on the Court. One central lesson of decisions is that the Court will protect immigrants from arbitrary removal decisions of the Board of Immigration Appeals (BIA) and, at the same time, defer to the BIA’s reasonable interpretation of the immigration laws. The Court has followed a relatively consistent pattern in this regard in recent years, with an occasional blockbuster like Arizona v. United States (I admittedly am speculating) and Padilla v. Kentucky.

 

1. Deference to the BIA: Judulang v. Holder

In Judulang v. Holder, the Supreme Court addressed a case in which the U.S. government sought to remove from the United States a lawful permanent resident who had lived here since 1974, based on a 1989 voluntary manslaughter conviction. Former Section 212(c) of the Immigration and Nationality Act provides for a “waiver of excludability” allowing a noncitizen to enter, and resist removal from, the country despite a criminal conviction. The U.S. government sought to remove Joel Judulang from the United States on the ground that he had committed an “aggravated felony” involving a “crime of violence.” The Board of Immigration Appeals (BIA) ruled, and the Ninth Circuit affirmed, that a “crime of violence” was not “comparable” to any ground for exclusion and that Judulang was not eligible for relief.

Judulang argued that the BIA’s interpretation of the relevant statutory provisions was arbitrary and capricious. The Supreme Court agreed. Writing for a unanimous Court, Justice Elena Kagan began the opinion for the Court as follows:

"This case concerns the Board of Immigration Appeals’ . . . policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under a now-repealed provision of the immigration laws. We hold that the BIA’s approach is arbitrary and capricious. The legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it." (emphasis added).

In reaching that conclusion, the Court applied ordinary administrative law principles. The Court held that the BIA’s ruling “flunked” minimal judicial review. Finding that the BIA’s interpretation of the statute was not reasonable, the Court emphasized that “[w]e must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case.”

As in Judulang v. Holder, the Supreme Court has in recent years subjected the immigration decisions of the government to the same standards of judicial review as applied to other agency actions. The Court also has applied the same basic principles of statutory interpretation to the immigration laws that it applies to other statutes.

For commentary on Judulang, see here and here.

 

2. Deference to the BIA: Vartelas v. Holder

The issue before the Supreme Court in Vartelas v. Holder was the application of Immigration & Nationality Act § 101(a)(13)(C)(v),which was added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under the amended definition of “admission” into the United States, a lawful permanent resident returning from a brief trip outside the country who had been convicted of certain criminal offenses was deemed to be seeking admission into the country. The U.S. government relied on the new statutory provision to deny admission to Vartelas based on conviction for a “crime involving moral turpitude.”

Vartelas would not have been subject to deportation if he had not left the United States. Before 1996, as a lawful permanent resident, he would have been free to take a short trip out of the country.

In an opinion by Justice Ruth Bader Ginsburg, the Supreme Court rejected the BIA’s order that Vartelas be returned to Greece:

"We conclude that the relevant provision of IIRIRA, § 1101(a)(13)(C)(v), attached a new disability (denial of reentry) in respect to past events (Vartelas’ pre-IIRIRA offense, plea, and conviction). Guided by the deeply rooted presumption against retroactive legislation, we hold that §1101(a)(13)(C)(v) does not apply to Vartelas’ conviction. The impact of Vartelas’ brief travel abroad on his permanent resident status is therefore determined not by IIRIRA, but by the legal regime in force at the time of his conviction."

In so holding, the Court applied the “presumption against retroactive legislation” and the general retroactivity rules from Landsgraf v. USI Film Products (1994). The Court found that, in pleading guilty to the criminal charge in 1994, Vartelas “likely relied” on the law as it existed at that time, which allowed him the freedom to take brief trips outside the United States.

In an opinion joined by Justices Thomas and Alito, Justice Scalia dissented. The dissent viewed the activity regulated by the 1996 amendment as reentry into the United States after a trip outside the country. Consequently, the new statutory language was not applied retroztively because Vartelas's readmission to the United States after a trip abroad occurred years after the effective date. Justice Scalia accused the majority of going beyond the statutory language to achieve a fair result.

In sum, the Court found for Vartelas in a narrowly drawn opinion that found that the retroactive application of 1996 amendments to the immigration laws would be unconstitutional. Applying the standard test for the retroactive application of new laws, the Court concluded that Vartelas could not be subject to the 1996 amendment. The Court did not address broader questions, including the constitutional rights of lawful permanent residents.

For further commentary, click here.

 

3. Deference to the BIA: Holder v. Gutierrez and Holder v. Sawyers

In these consolidated cases, the Supreme Court reviewed the question whether the Board of Immigration Appeal’s decision to forbid the imputation of the years of a parent’s residency in the United States to a minor child for the purpose of calculating eligibility for relief from removal. Writing for a unanimous Court, Justice Elena Kagan deferred to the BIA’s construction of the statute.

The Court concluded that the Board’s rejection of imputation of the time of parent’s residence to the child for purposes of eligibility for relief was a permissible construction of the statutory provision (which seemed pretty clear cut to the Court) in question (8 U.S.C. § 1229b(a)). As a reasonable construction of the statute, the agency’s interpretation was entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The decision has all the trappings of the run-of-the-mill Chevron deference case.

For commentary, click here and here. Professor Jill Family analyzes the decision on SCOTUSblog.

 

4. Deference to the BIA: Kawashima v. Holder

In Kawashima v. Holder, the U.S. Supreme Court, in a majority (6-3) decision written by Justice Clarence Thomas, affirmed the Ninth Circuit's holding that a tax crime was an “aggravated felony” under the U.S. immigration laws subjecting an immigrant to removal. Joined by Justices Breyer and Kagan, Justice Ginsburg dissented.

The issue before the Court was whether that the convictions of Akio and Fusako Kawashima, natives of Japan who had been lawful permanent residents since 1984, for the filing, and aiding and abetting in filing, a false statement on a corporate tax return constituted “aggravated felonies,” thereby making them removable from the United States. Engaging in a straight-forward analysis of the statutory language, the Court concluded that the crimes constituted "aggravated felonies" subjecting them to removal.

At various times, the Supreme Court has applied the “rule of lenity” to interpret ambiguities in a deportation statute in favor of the noncitizen fighting deportation. Justice Thomas and the majority did not seem to see any ambiguities in the removal statute that warranted invocation of the rule of lenity. In contrast, Justice Ginsburg in dissent relied on the rule of lenity as a basis for her interpretation of the statute in favor of the noncitizen.

In Kawashima v. Holder, the Court engaged, as often is the case in immigration cases, in a debate over statutory construction of the complex immigration laws. This is a run-of-the-mill statutory interpretation case. Justice Thomas focuses on the plain meaning of the statute and Justice Ginsburg reads more into the statutory text (and structure of two sub-sections). As with the other decisions discussed in this post, I do not see this immigration case having much of an impact on immigration cases.

For commentary, click here. A recap of the decision on SCOTUSBlog can be found here.

Conclusion

Nearly twenty years ago in Responding to the “Litigation Explosion”: The Plain Meaning of Executive Branch Primacy Over Immigration, 71 North Carolina Law Review 413 (1993), I criticized a series of Supreme Court immigration decisions that applied ordinary principles of statutory construction and administrative law in the review of agency immigration decisions. My claim was that, given the important life and liberty issues at stake in an immigration case, the courts should engage in more exacting judicial review of agency removal decisions.

The Supreme Court obviously has not embraced my suggested approach. Nonetheless, the good news is that the Court is engaging in meaningful review of agency decisions and applying ordinary administrative law principles in that review, not blindly deferring to the Board of Immigration Appeals. In terms of statutory interpretation, the Court is, as in other cases, focusing on the plain meaning of the text of the statute. The immigration attorney should take to heart the Court’s devotion to rigorous statutory construction and expect ordinary – but not excessive – deference to the agency by the courts to the rulings of the BIA.

KJ

May 23, 2012 in Current Affairs | Permalink | TrackBack (0)

Immigration Article of the Day: "Finding the Third State: Internatonal Human Rights Law and State Responsibility for Iraqi Refugees" by FAHAD SIDDIQUI

"Finding the Third State: Internatonal Human Rights Law and State Responsibility for Iraqi Refugees" by FAHAD SIDDIQUI, York University - Osgoode Hall Law School, University of London - School of Oriental and African Studies (SOAS).

ABSTRACT: This paper explores the relative silence of international law scholarship on the question of state responsibility for Iraqis displaced since the invasion of 2003. I argue that that the scope of application provisions of international and regional human rights instruments makes it difficult to ascribe state responsibility to transnational acts that generate refugee flows. Specifically, the establishment by human rights bodies of an “effective control” threshold to determine the extraterritorial obligations of states has created a responsibility gap in relation to refugees produced by international uses of force. As a result, international human rights law effectively imposes liability on the domestic refugee-producing acts of states while immunizing similar refugee-producing acts perpetrated beyond state boundaries.

KJ

May 23, 2012 in Current Affairs | Permalink | TrackBack (0)

Anchor Baby of the Day: Juan Felipe Herrera, California Poet Laureate

 

In March, University of California, Riverside poetry professor Juan Felipe Herrera — known for chronicling the bittersweet lives, travails and contributions of Mexican Americans — was named California Poet Laureate by Gov. Jerry Brown. He is the first Latino poet to hold this post. Born in California, Herrera is the son of migrant farm workers and holds the Tomás Rivera Chair in Creative Writing at UC Riverside. He is the author of more than 20 books, including narratives for children and young adults ("Calling the Doves" and "Upside Down Boy") and a career-spanning anthology, "Half of the World in Light," which won the 2008 National Book Critics Circle Award in poetry. This L.A. Times story tells about Herrera and his popularity in California.

KJ

May 23, 2012 in Current Affairs | Permalink | TrackBack (0)

Death on the Border: Father of five dies in Arizona desert after being deported

This unfortunately is an everyday story in the U.S./Mexico border region and a direct consequence of heightened border enforcement that began in earnest with Operation Gatekeeper south of San Diego in the 1990s. A Southern California man died along the U.S. border with Mexico last month trying to return to his family after being deported. The body of Alfonso Martinez Sanchez, 39, was found on the Tohono O'odham Indian Reservation, which stretches along the Arizona border and is a frequent route for thousands of migrants. It is part of the Sonoran desert where temperatures can often soar to more than 100 degrees. Martinez was trying to return to his wife and five U.S.-born children, ages 5 to 18.

KJ

May 23, 2012 in Current Affairs | Permalink | TrackBack (0)

Tuesday, May 22, 2012

H-1B Visa Numbers Running Out

From James Mayock:

Note the dwindling availability of H-1B visa numbers for the upcoming fiscal year starting 1 Oct 2012.
 
H-1B visas for Fiscal Year 2013 may be exhausted before June 8, 2012. 42,000 of the 65,000 base H-1Bs have been used as of May 18, 2012.  With 23,000 left, that means less than 4 weeks of H-1B availability.  You can also anticipate a filing rush as the visas run out.
 
A visa petition need not be approved in order to obtain an available number under this year's cap.  Form I-129 only needs to be FILED with CIS Citizenship and Immigration Services before the quota is exhausted.  But each H-1B visa petition needs to have an LCA Labor Condition Application certified by the Department of Labor before filing with CIS.  The certification process can take at least a week.

bh

May 22, 2012 | Permalink | TrackBack (0)

Michelle Brané To Receive 11th Annual Daniel Levy Memorial Award for Outstanding Achievement in Immigration Law

Michelle
The 2012 honoree for the Daniel Levy Memorial Award for Outstanding Achievement in Immigration Law is Michelle Brané. Michelle Brané is one of the nation's foremost experts on U.S. immigration detention and reform. As the Director of the Detention and Asylum program at the Women's Refugee Commission, Michelle Brané advocates for the critical protection needs of immigrant women, children and other vulnerable migrant populations in the United States. In addition to frequently writing on key issues concerning immigration detention and reform, she authored the 2007 Women's Refugee Commission landmark report on family detention, Locking Up Family Values and the 2009 report on unaccompanied migrant children, Halfway Home, and is the senior editor of all the Detention and Asylum Program's reports.

The award presentation and reception will be held Wednesday, June 13, 2012, at 7 p.m. at the AILA National Conference in Nashville.  A member of the Editorial Board of Bender's Immigration Bulletin, Daniel Levy died at the age of 48 on Sept. 14, 2001, in Los Angeles after a long battle with cancer. Mr. Levy was a prolific author, litigator, and scholar, and was widely known and loved by many in the immigration bar.

With this annual award Matthew Bender seeks to honor an individual who emulates the values that informed Mr. Levy's life and work:

- enthusiastic advocacy on behalf of immigrant clients;

- deep scholarship in immigration law; and

- an expansive vision of justice.

Prior honorees were Ann Benson (2005), Lisa Brodyaga (2003), Jayne Fleming (2009), Javier Maldonado (2006), Nancy Morawetz (2007), Christopher Nugent (2004), Michael J. Ortiz (2011), Brent Renision (2010), Philip Schrag (2008) and Charles Wheeler (2002).

KJ

May 22, 2012 in Current Affairs | Permalink | TrackBack (0)

Most Children Younger Than Age 1 are Minorities, Census Bureau Reports

Last week, the U.S. Census Bureau released a set of estimates showing that 50.4 percent of our nation's population younger than age 1 were minorities as of July 1, 2011. This is up from 49.5 percent from the 2010 Census taken April 1, 2010. A minority is anyone who is not single-race white and not Hispanic. The population younger than age 5 was 49.7 percent minority in 2011, up from 49.0 percent in 2010. A population greater than 50 percent minority is considered “majority-minority.” These are the first set of population estimates by race, Hispanic origin, age and sex since the 2010 Census. They examine population change for these groups nationally, as well as within all states and counties, between Census Day (April 1, 2010) and July 1, 2011. Also released were population estimates for Puerto Rico and its municipios by age and sex. There were 114 million minorities in 2011, or 36.6 percent of the U.S. population. In 2010, it stood at 36.1 percent. There were five majority-minority states or equivalents in 2011: Hawaii (77.1 percent minority), the District of Columbia (64.7 percent), California (60.3 percent), New Mexico (59.8 percent) and Texas (55.2 percent). No other state had a minority population greater than 46.4 percent of the total. More than 11 percent (348) of the nation's 3,143 counties were majority-minority as of July 1, 2011, with nine of these counties achieving this status since April 1, 2010. Maverick, Texas, had the largest share (96.8 percent) of its population in minority groups, followed by Webb, Texas (96.4 percent) and Wade Hampton Census Area, Alaska (96.2 percent).

KJ

May 22, 2012 in Current Affairs | Permalink | TrackBack (0)

Fingerprints, DNA, and Immigrant Communities

From the Immigration Policy Center:

**Telephonic Briefing – Wednesday, May 23, 2012 – 1 p.m. EST/10 a.m. PST**
Fingerprints, DNA, and U.S. Immigrant Communities:
How and Why the Government Collects Biometric Data
 
The collection of biometric data in the United States—whether by law enforcement or at the nation’s borders—has expanded drastically in the years since September 11, 2001, and immigrant communities are the increasingly affected by this expansion.  

What does this mean for the privacy and security of citizens and non-citizens alike?  The Immigration Policy Center and the Electronic Frontier Foundation (EFF) are hosting a teleconference briefing on biometrics and immigration on Wednesday, May 23 at 1 p.m. EST/10 a.m. PST.

The conference call is part of the launch of From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant Communities and Beyond, a joint white paper from Electronic Frontier Foundation and the Immigration Policy Center. The paper outlines the current state of U.S. government collection of biometric data—including the privacy risks and security problems that stem from the bulk collection of information like face prints, iris scans, and other biometrics.

Please join:
Jennifer Lynch, Electronic Frontier Foundation
Jonathan Weinberg, Wayne State University Law School
Michele Waslin, Immigration Policy Center

When: Wednesday, May 23 at 1 p.m. EST/10 a.m. PST.
RSVP: For dial-in directions send an email to Wendy Sefsaf at wsefsaf@immcouncil.org.

bh

May 22, 2012 | Permalink | TrackBack (0)

NOT COMING TO AMERICA: NEW REPORT SHOWS HOW OTHER COUNTRIES ARE ATTRACTING THE IMMIGRANTS THAT DRIVE ECONOMIC GROWTH

The Partnership for a New American Economy and Partnership for New York City today released the results of a first-ever comparative study of how foreign countries are shaping immigration policies to boost their economies, while the United States remains mired by a broken immigration system that turns away the high and low-skilled workers it needs for continued economic growth. The report – “Not Coming to America: Why the US is Falling Behind in the Global Race for Talent” – also details common-sense reforms to U.S. immigration policy that are necessary to boost the nation’s economy. The report was released today.

KJ

May 22, 2012 in Current Affairs | Permalink | TrackBack (0)

Immigration Article of the Day: "Get on the Omnibus: Immigration Reform and the Electoral Motivations of State Legislators" by JOSHUA ZINGHER

"Get on the Omnibus: Immigration Reform and the Electoral Motivations of State Legislators" by JOSHUA ZINGHER, State University of New York at Binghamton.

ABSTRACT: In this paper I argue that the Republican Party is using immigration reform as a means of dividing the Democratic Party both in the legislature and the electorate. Over the last several years a number of Republican controlled state legislatures have passed highly restrictive omnibus immigration reform bills. Omnibus immigration legislation such as SB 1070 in Arizona has been widely popular among the majority of the voters but highly unpopular among Latinos. Why has the Republican Party being willing to seemingly alienate Latinos, the United State’s largest ethnic minority group? My answer to this question is that the issue of immigration has effect of dividing the Democratic Party both in the legislature and the electorate. The ability of the immigration to divide the Democratic Party, but not the Republican Party, lies in the combination of the disparity in opinion between Latinos and whites on immigration reform and the predominately Democratic partisanship of non-Cuban Latinos. Across states, the divide in the Democratic Party on immigration is reflected by the fact that Democratic legislators are highly divided on the final passage votes on omnibus immigration reform. Moreover, using a series of fixed effects logit models I find that the divide among Democratic state legislators on omnibus immigration reform votes is a product of the demographic composition of the legislator’s district. My analysis reveals that the issue of immigration frequently divides the Democratic Party, which makes immigration an appealing legislative issue for the Republican Party when they control the agenda.

KJ

May 22, 2012 in Current Affairs | Permalink | TrackBack (0)

Monday, May 21, 2012

An Immigrant Blacklist? Alabama Legislature Amends H.B. 56, the Toughest State Immigration Enforcement Law

Alabama

Passed last year, the Beason-Hammon Taxpayer and Citizen Protection Act, or H.B. 56, is the state of Alabama's effort to be even tougher on undocumented immigrants than Arizona’s controversial S.B. 1070. On Friday, Alabama Gov. Robert Bentley signed into law revisions to Alabama’s immigration enforcement law that, surprisingly enough, in certain respects make a tough-on-immigrants law even tougher. 

Gov. Bentley unsuccessfully tried to persuade lawmakers to change two provisions, one that requires schools to check the immigration status of enrolling schoolchildren, anda “Scarlet Letter” provision that requires the creation of a public computer database listing the names of undocumented immigrants who appear in court.

As we have previously reported on ImmigrationProf, the amended H.B. 56 has provoked controversy and it is unlikely to subside anytime soon.  The following is a statement from Ali Noorani, Executive Director of the National Immigration Forum.

“Alabama policymakers have officially turned back the clock on civil rights in the Heart of Dixie. The revised immigration law has achieved a new low in discriminatory and overreaching policy, targeting schoolchildren in order to frighten their parents and creating a big-government, taxpayer-funded ‘immigrant blacklist.’

“It is disappointing that Governor Bentley gave in to the legislature and signed the mean-spirited substitute law, despite his own concerns about its severity and potential impact. Indeed, Governor Bentley missed an opportunity to show responsible leadership and heed the pleas of farmers, religious and civil rights leaders calling for a repeal of the immigration law. These diverse voices oppose the latest immigration bill in Alabama because it damages the overall economy of the state and because it is a direct attack on our American values of fairness and equal treatment.

“Just last week, reports indicated that Alabama farmers were cutting back on food production. They feared crops would rot in the fields for a second straight year, a product of the farm labor shortage Alabama’s heavy-handed immigration measures have caused. Alabama’s own newspapers have reproached the immigration laws because they ‘give economic recruiters in other states all the ammunition they need to keep industries and businesses from locating in Alabama’ and because they ‘present Alabama as a closed, intolerant, unwelcoming state.’

“The new iteration of the immigration law is just meaner and more reckless. It is a bad sequel aiming to bring intimidation and fear to Alabama’s classrooms and courtrooms. Until Alabama policymakers right this wrong by repealing the law or the courts overturn it, all Alabamians will continue to suffer the economic and moral consequences.”

A legal challenge to H.B. 56 is pending in the court of appeals as the court awaits the Supreme Court's ruling in Arizona v. United States.

KJ

May 21, 2012 in Current Affairs | Permalink | TrackBack (0)

Vermont Protests Obama as the "Deporter In Chief"

From Migrant Justice:

VERMONT PROTESTS OBAMA “DEPORTER IN CHIEF” FOR IMPOSITION OF CONTROVERSIAL “SECURE COMMUNITIES” IMMIGRATION ENFORCEMENT PROGRAM
 
    Obama Receives Failing grade on Immigration from Vermont

WHAT: Migrant workers, allies and other community members will hold a protest and press conference to condemn President Obama, “DEPORTER IN CHIEF”,  for imposing the disastrous “Secure Communities” program in Vermont.

WHEN:   Tuesday, May 22nd, 5pm Protest, 5:30pm Press conference

WHERE:  Burlington, VT. Obama Campaign Vermont Headquarters. 209 Battery St (near corner Battery St and Maple St).

WHY:  On Tuesday May 22nd, the widely discredited and controversial Secure Communities (S-COMM) program is being imposed on Vermont by the Obama Administration without any consultation or public dialogue. Secure Communities is Obama’s tool to advance his inhumane deportation quotas of 400,000 annually, which have resulted in 1.4 million deportations, more than any other president. In Vermont, Secure Communities threatens to increase deportations and drive a wedge between immigrant communities and police, who have come a long way in Bias-Free Policing .

As Danilo Lopez of Migrant Justice explains, “We are protesting because we don’t want S-COMM in Vermont or anywhere. Obama has imposed the program on us despite it resulting on the deportation of hard working families, friends and neighbors rather than targeting dangerous criminals as it claims.”

Migrant workers and community allies will call for the immediate termination of S-COMM and deliver President Obama a large failing Immigration Report Card for having promised immigration reform only to promote criminalization and mass deportations through programs like “S-COMM”.

bh

May 21, 2012 | Permalink | TrackBack (0)

Domestic Workers Demand Wages Owed by Millionaire

From the Brazilian Immigrant Center:

Belmont, MA— Domestic workers and workers' rights advocates will be holding a protest in the center of Belmont on May 22, 2012, calling on John Cranney, CEO of Shaklee Corporation, to pay the workers the back wages they are owed.  These five workers allege that Cranney, a Belmont resident and millionaire, has refused to pay for the house work and home care they provided for him and his wife.

After attempting to talk with Mr. Cranney, the workers ended up filing suit. The court hearing will be May 24, 2012.  All of the workers are standing together to support each others claims of wage theft. A total of five workers are seeking wages. Four are being represented by the Domestic Worker Law and Policy Clinic, and another worker just came forward with the hopes of filing suit.
 
"We worked really hard, I missed Christmas with my family to work for him and I just want to get paid." N. Cabral
 
"We have sent three letters to Mr. Cranney, asking for him to pay these workers for their hard work, yet we have received no response. We are shocked at his blatant disregard for U.S. labor laws and for their rights of these women who spent hours working in his home," said Natalicia Tracy, Executive Director of the Brazilian Immigrant Center.
 
"It is deplorable that a man of such great wealth like Mr. Cranney would refuse to pay his workers." said Russ Davis, Executive Director of Massachusetts Jobs with Justice. "The average amount owed to each worker is about $3,000. Mr. Cranney's house alone has a worth of $3.8 million, so we are confident that he has the resources to pay his workers.

Please join Brazilian Immigrant Center, Jobs with Justice, WILD, Matahari and the Massachusetts Coalition for Domestic Workers as  we

STAND WITH THE WORKERS!!!!!

When:  Tuesday, May 22, 2012 at 1:00pm!

Where:  Belmont Town Hall, 455 Concord Ave, Belmont

Contact:  Lydia Edwards at legal@braziliancenter.org or 617 783 8001 ext. 113

bh

May 21, 2012 | Permalink | TrackBack (0)

Rubio Attacks Immigrant Children

From the Center for American Progress:

Sen. Marco Rubio (R-FL) has talked ... and talked ... and talked about introducing a bill that would provide legal status to, as he says, blameless undocumented individuals who were brought to the United States as children. We have welcomed the Florida senator’s entry into this important discussion and have been anxious to see his bill and the strong Republican support that he has promised. As described in his numerous interviews about the subject, it should be an easy bill to write since it is structurally so similar to the DREAM Act, a bill first introduced 10 years ago that would provide undocumented youth an opportunity to earn citizenship. And yet, two months later, there is still no bill and no evidence of political support from his Republican colleagues.

So it was quite the surprise to immigration advocates when the bill he actually introduced this week was not his promised DREAM-like proposal, but rather a bill that attacks “blameless” low-income American children. His bill, which is designed to restrict eligibility for the additional child tax credit, the refundable portion of the federal child tax credit, landed like a heavyweight’s blow to the chin of low-income immigrant families.

In his press release about the bill, Sen. Rubio claims that his proposal will end a “scam that costs American taxpayers $4.2 billion” by blocking refundable credits from going to U.S.-citizen or legally resident children who have an undocumented parent provider. But the child tax credit was enacted in 1998 without regard to the immigration status of the parents for a good reason.

Read more here.

bh

May 21, 2012 | Permalink | TrackBack (0)

Supremes Defer to BIA in Companion Cases

The Supreme Court today decided Holder v. Gutierrez and Holder v. Sawyers, which was previewed by Professor Jill Family in a link posted on ImmigrationProf before oral argument in the case.  Justice Kagen wrote for a uninimous Court deferring to the Board of Immigration Appeals' construction of the cancellation of removal statute.  Here are the basics about th edecision from the syllabus to the case.

The Immigration of Nationality Act, 8 U. S. C. § 1229b(a), authorizes the Attorney General to cancel the removal of an alien from the United States who, among other things, has held the status of a lawful permanent resident (LPR) for at least five years, § 1229b(a)(1), and has lived in the United States for atleast seven continuous years after a lawful admission, § 1229b(a)(2).

The companion cases concern whether the Board of Immigration Appeals (BIAor Board) should impute a parent’s years of continuous residence or LPR status to his or her child. That issue arises because a child may enter the country lawfully, or may gain LPR status, after one of his parents does—meaning that a parent may satisfy § 1229b(a)(1) or §1229b(a)(2), while his child, considered independently, does not.

In In re Escobar, 24 I. & N. Dec. 231, the BIA concluded that an alien must meet §1229b(a)’s requirements on his own. But the Ninth Circuit found the Board’s position unreasonable, holding that § 1229b(a)(1) and § 1229b(a)(2) require imputation.  concluded that Martinez Gutierrez qualified for relief because of his father’s immigration history, even though Martinez Gutierrez could not satisfy § 1229b(a)(1) or § 1229b(a)(2) on his own. Relying on Escobar, the BIA reversed. The Ninth Circuit then granted Martinez Gutierrez’s petition for review and remanded the case to the Board for reconsideration in light of its contrary decisions.

Held: The BIA’s rejection of imputation is based on a permissible construction of § 1229b(a).

 (a) The Board has required each alien seeking cancellation of removal to satisfy § 1229b(a)’s requirements on his own, without relyingon a parent’s years of continuous residence or immigration status.That position prevails if it is a reasonable construction of the statute,whether or not it is the only possible interpretation or even the one a court might think best. See e.g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843–844, and n. 11. The BIA’s approach satisfies this standard. The Board’s position is consistent with the statute’s text. Section 1229b(a) does not mention—much less require—imputation. Instead, it simply calls for “the alien” to meet the prerequisites for cancellation of removal. Respondents contend that this language does not foreclose imputation, but even if so,that is not enough to require the Board to adopt that policy. 

(b) Neither does the statute’s history and context mandate imputation. Section 1229b(a) replaced former §212(c) of the Immigrationand Nationality Act (INA), which allowed the Attorney General to prevent the removal of an alien with LPR status who had maintained a “lawful unrelinquished domicile of seven consecutive years” in this country. Like § 1229b(a), § 212(c) was silent on imputation. But every Court of Appeals that confronted the question concluded that, in determining eligibility for § 212(c) relief, the Board should impute aparent’s years of domicile to his or her child. Based on this history,

(c) Respondents advance two additional arguments for why the Board’s position is not entitled to Chevron deference. First, they claim that the Board’s approach to § 1229b(a) is arbitrary because it isinconsistent with the Board’s acceptance of imputation under other,similar provisions that are silent on the matter. But the Board’s decision in Escobar provided a reasoned explanation for these divergent results: The Board imputes mattersinvolving an alien’s state of mind, while declining to impute objectiveconditions or characteristics. Section 1229b(a) hinges on the objective facts of immigrationstatus and place of residence. So the Board’s approach to § 1229b(a) largely follows from one straightforward distinction.

Second, respondents claim that the BIA adopted its no-imputationrule only because it thought Congress had left it no other choice. But Escobar belies this contention. The Board did explain how § 1229b(a)’s text supports its no-imputation policy. But the Board also brought its experience and expertise to bear on the matter: It noted that there was no precedent in its decisions for imputing status orresidence, and it argued that allowing imputation under § 1229b(a)would create anomalies in the statutory scheme. Escobar thus expressed the BIA’s view that statutory text, administrative practice, and regulatory policy all pointed toward disallowing imputation. In making that case, the opinion reads like a multitude of agency interpretations to which this and other courts have routinely deferred.

I am looking forward to digesting the case but, at first glance, it appears to me like a run-of-the-mill Chevron deference case.

KJ

May 21, 2012 in Current Affairs | Permalink | TrackBack (0)

Immigration Law Professor to Receive Honorary Degree

Professor Karen Musalo (UC Hastings) will receive an honorary degree at the commencement ceremonies later this month at the City University of New York. Professor Musalo written numerous articles on refugee law issues, with a focus on gender asylum. She was the lead attorney in Matter of Kasinga (fear of female genital cutting as a basis of asylum), which continues to be cited as authority in gender asylum cases by tribunals from Canada to the United Kingdom to New Zealand. Her recent litigation victories include Matter of R-A-, and Matter of L-R-, two cases which establish that women fleeing domestic violence may qualify for refugee protection. Her current work examines the linkage between human rights violations and migration, with a focus on the phenomenon of femicides in Guatemala, and El Salvador, and its relation to requests for refugee protection from Guatemalan women.

KJ

May 21, 2012 in Current Affairs | Permalink | TrackBack (0)

Sunday, May 20, 2012

Immigration Article of the Day: Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings by Mark L. Noferi

Cascading Constitutional Deprivation: The Right to Appointed Counsel for Mandatorily Detained Immigrants Pending Removal Proceedings by Mark L. Noferi Brooklyn Law School, Michigan Journal of Race & Law, Vol. 18, No. 1, 2012 (forthcoming).

Abstract: When a Department of Homeland Security officer mandatorily detains a green card holder without bail pending his removal proceedings, for a minor crime committed perhaps long ago, the immigrant’s life takes a drastic turn. If he contests his case, he likely will remain incarcerated in substandard conditions for months or years, often longer than for his original crime, and be unable to acquire a lawyer, access family whom might assist, or access key evidence or witnesses. In these circumstances, it is all but certain he will lose his deportation case, sometimes wrongfully, and be banished abroad from work, family, and friends. The immigrant’s one chance to escape these cascading events is the off-the-record “Joseph” hearing challenging detention. If he wins, is released, and can secure counsel, he likely will win his case to stay in America. Yet pro se and detained, he may not even be told the “Joseph” hearing exists, let alone win the hearing involving complex statutory analysis on facts, witnesses, and evidence relating to the conviction, now all outside his reach. It is rare in modern American law that a non-lawyer’s decision causes so much to hang in the balance in such complex yet informal proceedings without a lawyer to challenge it. Indeed, the modern immigration detention system is uniquely rare, in peacetime or war, in providing for preventive pretrial detention without counsel pursuant to underlying proceedings without counsel. It creates a cascading risk of wrongful detention and deportation – one cognizable under modern procedural due process theories, even notwithstanding traditional plenary power over immigration laws. In a post-Padilla v. Kentucky world with an increasingly functionalist Constitutional view of deportation, and where criminal defenders now must advise on the same issues litigated at the Joseph hearing, a right to appointed counsel for mandatorily detained immigrants pending removal proceedings is constitutionally viable, practically feasible, and morally necessary.

KJ

May 20, 2012 in Current Affairs | Permalink | TrackBack (0)