Saturday, July 7, 2012
U.S. citizen Sues U.S. Government after the Secure Communities program flagged him as an undocumented immigrant
This is a cautionary tale about Secure Communities about a U.S. citizen naturalized at age 1 and at age 24 placed in high security imprisonment (rather than a drug rehab program) after a brush with the law because the U.S. givernment had not updated his immigration records. He has brought a lawsuit alleging in U.S. District Court of Northern Illinois alleging that the FBI and Department of Homeland Security violated the Privacy Act of 1974, which restricts what information may be passed between government agencies, every time they share fingerprints from people who are not suspected of an immigration violation.
We constantly hear about the US role in the militarization of the US/Mexico border. Spending in border enforcement continually increases. Nevertheless, a less-explored topic is Mexican militarization of the border. The following paragraphs explore how the recent Mexican elections might change Mexican border policy, and how that might affect immigration into the United States.
The concurrent and intertwined wars on terrorism, drugs and immigration have spurred an American discourse promoting border security and militarization. The Mexican side of the border has also seen an increase in border enforcement, however, which is mostly spurred by the war on drugs. The Mexican army is funded by the United States through the Merida Initiative, which was signed by US President George W. Bush, Mexican President Felipe Calderon and Central American leaders. The militarization of the Mexican side of the border has been successful in part because of President Calderon’s willingness to work with the Americans in their agenda against drug trafficking.
Nevertheless, Mexican elections earlier this week may promote a shift in Mexican foreign policy concerning drug enforcement in Mexico. The newly elected party, the PRI, has a well-known policy of tolerating the drug cartels. As a result, the dynamic along the border may drastically change as well. The PRI’s Enrique Pena Nieto may not be as willing as the PAN’s Calderon to work with the United States on their drug policy.
Mexican journalists write that the reason the violence with the drug cartels has increased so much in the past decade is the PAN’s unwillingness to look the other way. The PRI has always been known to turn a blind eye to the drug cartels, however, as long the local population is not caught in the middle. The PRI’s victory at the beginning of the week will probably usher in a new policy towards the drug cartels, which is exactly what Mexicans want, of course. The violence along the border may be ameliorated.
The decrease in Mexican involvement along the border could affect migration in multiple ways. It may result in an increase in American border security. If the Mexican government is unwilling to cooperate with the American government, the effect may be increased Border Patrol funding. One possible consequence might be pushing migrants to even more perilous conditions when crossing the border.
On the other hand, the decrease in violence on the Mexican side of the border could also spur migration across the southern border, especially from Central and South America. The increased drug violence in the past five years especially has resulted in perilous conditions for Central and South American migrants who travel across Mexico, because many are held for ransom or forced to carry drugs across the border. In August 2010, the Zetas were suspected of massacring 72 migrants from Central and South America.
In any case, Mexicans have chosen for a new approach in drug enforcement. The result is the PRI’s return to power after a 12-year hiatus. This new foreign policy will certainly affect migration. It will be interesting to see how the American government will react to this new era in Mexican politics.
Nienke Schouten is a law student at UC Davis School of Law.
Thursday, July 5, 2012
Today, the California State Senate approved AB 1081 (Ammiano), California’s TRUST Act, by a vote of 21-13. Floor manager Senator Kevin de Leόn (D – Los Angeles) presented the bill on the Senate floor.
The TRUST Act would create a national model to counter the racial profiling inherent in the one section of Arizona's anti-immigrant law which the Supreme Court did not strike down last week. Section 2(B) of Arizona's SB 1070 requires police to investigate immigration status based on ‘reasonable suspicion,' while the TRUST Act would create plans to guard against racial profiling.
The TRUST Act was originally drafted as a response to the federal "Secure" Communities or S-Comm deportation program which was described as a parallel to SB1070 sec2b in the Supreme Court case and has been responsible for deporting over 72,000 Californians. 7 in 10 of those deported under S-Comm in the state were deported with either no conviction or for minor offenses. In the worst instances, S-Comm is responsible for placing victims of domestic violence in deportation proceedings and deterring parents from reporting crimes committed against their children.
“We have made key progress today,” said Senator Kevin de Leόn. “This important measure is crucial to keep our communities safe. By promoting trust between immigrants and local law enforcement we ensure that victims of domestic violence and other crimes are not afraid to seek justice.”
Specifically, the TRUST Act sets a clear, minimum standard for local governments not to submit to burdensome requests from Immigration and Customs Enforcement (ICE) to detain people for deportation unless the individual has a serious or violent felony conviction and develops protections to monitor and guard against profiling in the state.
The bill has won the support of the California Catholic Conference, Los Angeles Mayor Antonio Villaraigosa, the Police Chiefs of Oakland and Palo Alto, and scores of local officials and community organizations. It will next come back to the State Assembly for one concurrence vote following summer recess, before heading down to the Governor.
Communities and leaders across the state are calling on Governor Brown to take action to keep families united and place reasonable limitations on deportations.
Justin Bieber (Born, Ontario, Canada)
Click here to learn more and play.
Selena Gomez (Texas, USA)
Which of the two do you think is more likely to be questioned about his or her immigration status if stopped by officers of the Maricopa Copunty Sheriff's Office while driving in Arizona? And who is more likely to be stopped at all?
Immigration law is unique in its national security applications because, while it may be used as a mechanism for keeping the enemy out, it is also the apparatus for entry into the United States. Viewing "national security" in its broadest meaning, there is a clear security interest in maintaining the integrity of the borders while simultaneously preserving our role as a nation that offers refuge.
The National Security Implications of Immigration Law examines this topic first by conducting a historical overview of using immigration law for national security purposes, and then exploring the laws and cases themselves:
National Security Tools Imbedded in Immigration Law: the exclusion and deportation grounds under the Immigration and Nationality Act for national security threats including espionage and terrorist activity;
the summary removal provision as a governmental tool against aliens who are perceived as threatening national security;
The Alien Terrorist Removal Court; and the International Convention Against Torture and how it affects national security policy in the United States by its immigration implications;
Material Support Statute and Denaturalization: the immigration consequences of providing material support to a terrorist organization; waivers to the material support bar in the Immigration and Nationality Act; and denaturalization of U.S. citizens.
Protecting Classified Information with Immigration Law: the provisions and techniques that allow the government to aggressively protect the national security interests of the United States with little exposure of classified information.
The Front Line of Immigration: Detention: the government's ability to detain terrorist suspects for deportation purposes, particularly the case of Zadvydas v. Davis.
Using Criminal Immigration as a National Security Tool: how the 8 U.S.C. §§ 1324, 1325, and 1326 prosecutions are utilized both as a means to protect our physical borders from illegal immigration and to combat national security threats.
Liberty Concerns with Using Immigration Law as a Security Tool: the rule of law and its role in immigration and national security policy.
This book is for students, teachers, and practitioners of immigration law, government officials and lawyers, international lawyers, and anyone with an interest in the intersection of immigration law and national security.
Deferred Action Process for Young People Who Are Low Enforcement Priorities
U.S. Citizenship and Immigration Services (USCIS) alerts eligible individuals NOT to submit a deferred action request under the Deferred Action Process for Young People memorandum issued by Secretary Napolitano on June 15. If you submit a Deferred Action application now, it WILL be rejected. The Secretary’s directive gives USCIS 60 days to create a process to accept these requests and we are unable to accept requests at this time. Please continue to check our website for updates. http://www.uscis.gov
In addition please note…
On March 30, 2012, the Department of Homeland Security (DHS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register outlining its plan to reduce the time U.S. citizens are separated from their immediate relatives (spouses, children, parents) while those family members are in the process of obtaining an immigrant visa to become lawful permanent residents of the United States.
THIS NEW PROCESS (Provisional Unlawful Presence Waiver: I-601) IS NOT YET IN EFFECT!!!
Since the announcement, USCIS has become aware of public misperceptions about the rule-making process and when the provisional unlawful presence waiver process will take effect. USCIS has issued a number of public education materials to combat these misperceptions including flyers and Public Service Announcements in English and Spanish. These public materials can be found on the USCIS website on the right-hand column.
***Do not send an application requesting a provisional waiver at this time. USCIS will reject any application requesting this new process and we will return the application package and any related fees to the applicant. USCIS cannot accept applications until a final rule is issued and the process change becomes effective.
***Be aware that some unauthorized practitioners of immigration law may wrongly claim they can currently file a provisional waiver application (Form I-601) for you. These same individuals may ask you to pay them to file such forms although the process is not yet in place. Please avoid such scams. USCIS wants you to learn the facts about protecting yourself and your family against scammers by visiting http://www.uscis.gov/avoidscams
From the National Immigration Law Center:
MANY OF US HAVE HEARD that the U.S. Supreme Court’s recent decision on Arizona’s SB 1070 law invalidated three of out of SB 1070’s four provisions. But did you realize that the decision contained a victory for immigrant workers? Read on to find out more.
In the case that started out as U.S. v. Arizona (and then became Arizona v. U.S. when Arizona appealed the lower courts’ decisions to the Supreme Court), the U.S. government claimed that certain portions of SB 1070 were preempted by federal law. In three of the four provisions, the Supreme Court agreed and held that the provisions were unconstitutional.
Struck Down: Provisions Deemed Unconstitutional
• Requirement for immigrants to carry documents (Section 3). Section 3 of SB 1070 created a state misdemeanor for the “willful failure to complete or carry an alien registration document.” The Court upheld the injunction of this provision based on its finding that Congress has enacted a comprehensive framework for immigration registration and thereby has occupied the field. Where Congress “occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.” Slip Opinion, 10. Thus, immigrant workers no longer face potential criminal charges for failing to carry their immigration papers. (Similar provisions were included in anti-immigrant state laws in Alabama and South Carolina.)
• Criminalized work (Section 5(c)). Section 5(c) made it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” In striking down this provision, the Court first noted that the Immigration Reform and Control Act of 1986 (IRCA) provided a “comprehensive framework” for the regulation of unauthorized employment. The Court then reviewed the legislative history of IRCA and found that, in passing the statute, Congress had deliberately chosen not to criminalize immigrants who worked without authorization. Section 5(c) was preempted because it would conflict with IRCA. Thus, immigrant workers are spared possible criminal charges simply for trying to earn a living. (A similar provision was included in Alabama’s anti-immigrant law.)
• Warrantless Arrest (Section 6). Section 6 allowed local law enforcement to make a warrantless arrest of a person if the officer making the arrest had probable cause to believe that he had committed an offense that would make him removable from the U.S. The Court found that the removal process involves discretionary decisions entrusted exclusively to the federal government that would be undermined by the unilateral state action authorized by section 6. The Court therefore found the section to be preempted. Thus, immigrant workers are no longer subject, under Arizona law, to warrantless arrest by local police acting unilaterally on their suspicion that the worker had engaged in past deportable activity. (Similar provisions were included in anti-immigrant state laws in Utah and Indiana.)
Fortunately, these provisions were struck down. Before they were invalidated, they had threatened immigrant workers’ safety, security, and ability to enforce their rights, both on and off the job. Because the Court struck down these provisions, unscrupulous employers cannot use them to make immigrant workers more vulnerable.
Narrowed, but Upheld for Now
The decision certainly was not all good news. Unfortunately, the Court refused to uphold the injunction of SB 1070’s section 2B, which requires local police to check the immigration status of any person stopped or detained if they have a “reasonable suspicion” that the person is undocumented. Since the provision has not yet gone into effect, the Court reasoned, it is too soon to determine whether it will be interpreted by the state in a way that conflicts with federal law.
The Court noted that the state’s interpretation of this provision could raise constitutional concerns, particularly if it were interpreted to permit the detention of a person solely to check immigration status, or immigration checks resulting in prolonged detention, or discrimination. Significantly, though, the Court warned Arizona that “[t]his opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” Slip Opinion, 24.
NILC and other legal allies, including the ACLU and MALDEF, are engaged in a lawsuit, Friendly House v. Whiting, that challenges SB 1070 on legal grounds that were not before the Court in the federal government’s case. Unlike the federal government’s case, Friendly House challenges the discriminatory motivation behind the law and the inevitable racial profiling that will result from the implementation of section 2B. In that litigation we will continue to seek to enjoin section 2B and other harmful provisions of SB 1070.
Although the Court explicitly directed that its ruling permitting implementation of section 2B will not take effect until the judgment is sent back to the Ninth Circuit Court of Appeal for further proceedings, we have received disturbing reports that some local police officers and officials believe they can implement section 2B now. Local advocates have set up a hotline to track abuses by law enforcement. If you know anyone who has been the victim of racial profiling or other abusive practices in Arizona, please share this hotline number with them: 1-800-RESPETO (1-800-737-7386).
Despite some victories, the ongoing battle against the law continues. NILC will continue our legal fight until SB 1070 is struck down in its entirety.
More information about NILC’s litigation against SB 1070 and copycat laws passed in five other states is available from www.nilc.org/litigationie.html. If you have questions, contact Josh Stehlik, NILC’s workers’ rights attorney, at 213-674-2817 or firstname.lastname@example.org.
I learned something new today. Charles Garcia on CNN.com writes that "The term `illegal immigrant' was first used in 1939 as a slur by the British toward Jews who were fleeing the Nazis and entering Palestine without authorization. Holocaust survivor and Nobel Peace Prize winner Elie Wiesel aptly said that `no human being is illegal.'"
Our Immigrant of the Day is James Muller, whose family fled Nazi Germany. A naturalized citizen who celebrated Independence Day yesterday, Muller is a prominent New jersey attorney whose son, Eric Muller, is a law professor at the University of North Carolina whose scholarship on the Japanese internment has been influential.
NEW YORK STATE BAR ASSOCIATION ISSUES REPORT ON CRISIS IN IMMIGRANT LEGAL REPRESENTATION, CALLS FOR REFORMS
The New York State Bar Association has issued a report that spotlights a crisis in the quality and availability of legal representation of immigrants in New York and makes recommendations for improvement, including written standards for immigration representation. The report of the Special Committee on Immigration Representation cites a “dire” shortage of attorneys qualified in immigration issues, insufficient safeguards to protect immigrants from unauthorized or unqualified practitioners, and the need for more educational programs and pro bono participation to assist low-income immigrants.
Wednesday, July 4, 2012
From the Bookshelves: Making the Chinese Mexican, Aftermath: Deportation Law and the New American Diaspora, and Disenchanting Citizenship
Making the Chinese Mexican is the first book to examine the Chinese diaspora in the U.S.-Mexico borderlands. It presents a fresh perspective on immigration, nationalism, and racism through the experiences of Chinese migrants in the region during the late nineteenth and early twentieth centuries. Navigating the interlocking global and local systems of migration that underlay Chinese borderlands communities, the author situates the often-paradoxical existence of these communities within the turbulence of exclusionary nationalisms. The world of Chinese fronterizos (borderlanders) was shaped by the convergence of trans-Pacific networks and local arrangements: against a backdrop of national unrest in Mexico and in the era of exclusionary immigration policies in the United States, Chinese fronterizos carved out vibrant, enduring communities that provided a buffer against virulent Sinophobia. This book challenges us to reexamine the complexities of nation-making, identity formation, and the meaning of citizenship. It represents an essential contribution to our understanding of the U.S.-Mexico borderlands.
Since 1996, when new, harsher deportation laws went into effect, the United States has deported millions of noncitizens back to their countries of origin. While the rights of immigrants-with or without legal status--as well as the appropriate pathway to legal status are the subject of much debate, hardly any attention has been paid to what actually happens to deportees once they "pass beyond our aid." In fact, we have fostered a new diaspora of deportees, many of whom are alone and isolated, with strong ties to their former communities in the United States. Daniel Kanstroom, author of the authoritative history of deportation, Deportation Nation, turns his attention here to the current deportation system of the United States and especially deportation's aftermath: the actual effects on individuals, families, U.S. communities, and the countries that must process and repatriate ever-increasing numbers of U.S. deportees. Few know that once deportees have been expelled to places like Guatemala, Cambodia, Haiti, and El Salvador, many face severe hardship, persecution and, in extreme instances, even death. Addressing a wide range of political, social, and legal issues, Kanstroom considers whether our deportation system "works" in any meaningful sense. He also asks a number of under-examined legal and philosophical questions: What is the relationship between the "rule of law" and the border? Where do rights begin and end? Do (or should) deportees ever have a "right to return"? After demonstrating that deportation in the U.S. remains an anachronistic, ad hoc, legally questionable affair, the book concludes with specific reform proposals for a more humane and rational deportation system. For a radio interview of Kanstroom about the book, click here.
Central to contemporary debates in the United States on migration and migrant policy is the idea of citizenship, and this issue remains a focal point of contention. In Disenchanting Citizenship, Luis F. B. Plascencia examines two interrelated issues: U.S. citizenship and the Mexican migrants' position in the United States. The book explores the meaning of U.S. citizenship through the experience of a unique group of Mexican migrants who were granted Temporary Status under the "legalization" provisions of the 1986 IRCA, attained Lawful Permanent Residency, and later became U.S. citizens. Plascencia integrates an extensive and multifaceted collection of interviews, ethnographic fieldwork, ethno-historical research, and public policy analysis in examining efforts that promote the acquisition of citizenship, the teaching of citizenship classes, and naturalization ceremonies. He argues that the acquisition of citizenship can lead to disenchantment with the very status desired. In the end, Plascencia expands our understanding of the dynamics of U.S. citizenship as a form of membership and belonging.
From ABC News:
Peruvian immigrant George Bavanco has waited more than six years for this particular Fourth of July.
“I called Immigration almost every single day for too many years,” Bavanco says.
Today, those calls have been answered.
Bavanco was among 41 immigrants from 40 countries who took the oath of allegiance today on the grounds of the Freedom Forum in Arlington, Va., swearing to “support and defend the constitution and laws of the United States of America” and becoming a U.S. citizen.
So was biologist Lucy Songgilbart, who immigrated from China. “This is a wonderful day and I love this country,” she said, laughing. “I am very happy to be here.”
A Long Process
For most, the ceremony is the last step in a lengthy naturalization process. New immigrants must prove their knowledge of American government and of spoken English, and many have to wait for months or even years for the Immigration and Naturalization Service to process their paperwork.
“This is very special. All my other encounters have been in dingy offices with gruff immigration officers,” said Zohra Siddiqui, 58, who took the oath on the steps of Thomas Jefferson’s stately house at Monticello, Va.
Siddiqui, a former boys’ school principal, said she came to the United States from Pakistan eight years ago to be closer to her son and daughter. She was among 84 people from 27 countries who were sworn in as citizens at Monticello today. Read more..
As the nation celebrates its independence, a new report serves as a chilling reminder of the unnecessary restrictions placed on the liberty of thousands of immigrants each day.
Freed but not Free: A Report Examining the Current Use of Alternatives to Immigration Detention is the first report focused on shedding light on the flaws, inconsistencies, and human impact of current Alternative to Detention (ATD) programs in New Jersey and nationally. The 56-page report, released today by the Rutgers School of Law–Newark Immigrant Rights Clinic (IRC) and the American Friends Service Committee (AFSC) Immigrant Rights Program, examines the various mechanisms employed by Immigration & Customs Enforcement (ICE)—including in-person reporting requirements and electronic (or ankle) monitoring—to supervise immigrants who are not in detention. For the thousands of participants in ATD programs—many of whom have been deemed neither a flight risk nor a danger to the community—the programs “can be both liberating and debilitating,” the report finds.
“In recent years, there has been significant attention given to the shortcomings of the detention system and a corresponding call by advocates for expanding the use of alternatives to detention,” said Anjum Gupta, law professor and Director of the Immigrant Rights Clinic at Rutgers School of Law–Newark. “But with the call for expansion of ATD programs comes the need to evaluate the fairness of the programs now in place.”
Through interviews with program participants, attorneys, advocates, and government officials, the authors, including Rutgers-Newark clinical law students, identified several flaws in the current system. ATD programs are fraught with the potential for abuse and error; a lack of transparency and accountability; and economic, psychological, and physical hardships on individuals subjected to the programs, the report finds.
The report also cites as flaws the overuse and inconsistent use of electronic monitoring, unnecessarily onerous reporting requirements, and insufficient training for ICE officials. “The current use of Orders of Supervision and ATD programs in New Jersey is unnecessarily burdensome,” said Amy Gottlieb, Program Director of the AFSC Immigrant Rights Program. “These enforcement mechanisms have a detrimental impact on the lives of thousands of community members. Beyond the daily fear of deportation that they struggle with, the monitoring requirements create onerous restrictions that serve as a reminder as we celebrate Independence Day that some noncitizens are without true freedom.”
Freed but Not Free further states that after September 11, 2001, community-based alternatives to detention were abandoned in favor of increased detention and greater supervision of those not detained.
The report recommends an end to the use of private contractors in favor of community-based alternatives to detention. The report also calls for increased accountability and transparency, as well as more training for ICE officers.
The report also recommends that electronic monitoring be considered custody for immigration detention purposes, and that ATD programs be used as true alternatives for those individuals who would otherwise be placed in detention.
Tuesday, July 3, 2012
See this headline from the UK: "David Cameron: I'll do 'whatever it takes' to protect United Kingdom from Greek influx David Cameron has defended plans to close Britain’s borders to Greeks fleeing their country’s economic problems, saying he would do anything necessary to protect the United Kingdom."
Is Prime Minister Cameron's new role model Arizona Governor Jan Brewer? Sounds like the UK may be considering its own SB 1070, which might fare better in the British courts.
Courtesy of US Flag website
Happy Independence Day! Spend the Fourth of July at Thomas Jefferson's Monticello as Olympic champion Nadia Comăneci speaks to new citizens from around the world. Since 1963, more than 3,000 people from every corner of the globe have taken the oath of citizenship at the annual Monticello Independence Day Celebration and Naturalization Ceremony.
Comăneci, gold-medal-winning gymnast and naturalized citizen of the United States is considered one of the best known gymnasts in the world and the first to score a perfect 10.
The ceremony begins on Wednesday, July 4th at 9 a.m.; gates open at 7 a.m.
There are other naturalization ceremonies on Independence Day, including at the White House, Seattle, Annapolis, West Sacramento, and many other places across the country.
The MultI-American explains how, based on e-mails recently produced by the U.S. government, non-criminals can end up apprehended and deported under the Secure Communities program, which the Obama administration often claims is designed to deport "criminal aliens."
The U.S. Supreme Court had a full slate of immigration decisions in the 2011 Term. Next Term already has two immigration cases on the docket.
Last April, the Supreme Court granted cert in Moncrieffe v. Holder. The question presented is whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an "aggravated felony" for purposes of the U.S. immigration laws.
Once again, as in two of the decisions from this Term, the Court will grapple with the criminal grounds for removal under the U.S. immigration laws. This should not be a surprise given that the Obama administration has deported record numbers of noncitizens and, through programs like Secure Communities, has focused on those who get caught up in the criminal justice system.
The Court also has granted cert in a case (Chaidez v. United States) raising the issue of the retroactive application of the Supreme Court's 2010 decision in Padilla v. Kentucky, which requires attorneys to inform noncitizens of the immigration consequences of criminal convictions in making plea arrangements.
Supreme Court specialists Goldstein & Russell PC is counsel of record for Petitioner in Moncrieffe v. Holder and on the team of attorneys representing the Petitioner in Chaidez v. United States. Jeffrey L. Fisher Stanford Law School, Supreme Court Litigation Clinic, is counsel of record in Chaidez v. United States.
If I had to make predictions on the immigration cases that the Court is likely to take in coming years, I would guess the following:
1. Cases like Moncrieffe involving removals based on criminal convixtions for the reasons stated above (needless to say, there are an awful lot of cases that could fall into this category);
3. Cases that apply and test the limits of the Court's pathbreaking decision in Padilla v. Kentucky.