September 28, 2012
Ninth Circuit Blocks Age-Out Provision in Visa Backlog CasesFrom the Legal Action Center
Washington, D.C.—Yesterday, an en banc panel of the Ninth Circuit Court of Appeals ruled in favor of young adults who, due to long delays caused by visa backlogs, lost the opportunity to obtain their green cards before they turned 21. In accordance with arguments made in an amicus brief submitted by the Legal Action Center and the National Immigrant Justice Center, the court held that Congress specifically remedied this problem in the Child Status Protection Act (CSPA) of 2002, by allowing children who were listed on their parents’ visa petitions, but who turned 21 before a visa became available, to retain the earlier filing date of their parents’ visa petitions when new visa petitions are filed for them as adults. As the court explained, “This ensures that visas are available quickly, rather than requiring the now-adult aliens to wait many more years in a new visa line.”
The court’s ruling overturned a precedent decision of the Board of Immigration Appeals, Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009), which interpreted the law as benefiting only one visa category of “aged-out” children.
The court issued its decision in two cases, one of which is a national class action. Cuellar de Osorio v. Mayorkas. The petitioners in the two cases were represented by Reeves and Associates and the Law Offices of Carl Shusterman.
Prosecutorial Discretion for Same-Sex Couples AffirmedMiranda Leitsinger writes for NBC News
Same-sex couples will be considered “family relationships” in immigration proceedings, according to Department of Homeland Security Secretary Janet Napolitano, a move that could help stem the deportation of those in gay or lesbian binational relationships.
Close family ties to the United States are a factor considered by authorities in deportation cases, and gay and lesbian advocates have long argued for same-sex couples to have the same immigration rights as opposite-sex couples.
“In an effort to make clear the definition of the phrase ‘family relationships,’ I have directed ICE to disseminate written guidance to the field that the interpretation of the phrase ‘family relationships’ includes long-term, same-sex partners,” Napolitano said in a letter.
Eight-four members of Congress signed a joint letter to Napolitano on July 31 asking for her to put into writing an order to prevent the deportation and separation of immigrants from their American citizen same-sex partners.
. . . .[The order refers] to the prosecutorial discretion laid out in June 2011, when ICE Director John Morton issued a memo requiring staff to consider the circumstances presented in individual deportation cases, such as whether the person has close family ties to the U.S. Read more...
A Flood of Applications, With a Trickle of Approvals
Julia Preston in the N.Y. Times reports on the initial results in the Deferred Action for Childhood Arrivals program that the Obama administration announced in June. As of Thursday the agency, United States Citizenship and Immigration Services, had received more than 100,000 applications, officials said, with more than 63,000 in the last stages of review. So far, the agency has confirmed 29 approvals.
September 27, 2012
NEW INSIGHTS ON THE EFFECTS OF MIGRATION ON CHILD WELL-BEING WORLD LEADERS ARE CALLED ON TO CONNECT THESE DOTS
As world leaders gather in New York for the United Nations General Assembly, women and children are certainly part of the discussions. Leaders routinely fail, however, to address how changing migration patterns have a profound effect on children. New research sheds light on the connection between immigration patterns and child well-being, and should be central to many of the U.N. policy discussions.
“Migrant Youths and Children of Migrants in a Globalized World,” the focus of the September volume of The Annals of the American Academy of Political and Social Science, looks at international child migration through the lens of child development. With the backdrop of changing migration patterns, the researchers seek to identify policies and institutions that can ensure that children who migrate integrate and succeed in their new homes.
The volume details how the patterns of migration have changed over the past 40 years – from the sheer increase in the number of people migrating to the directional changes in migration -- while underscoring the demographic changes of migrants and the challenges facing migrant youth. Three key migration issues are highlighted: education; family, fertility, and the lifecycle timing of migration; and health.
The volume was co-edited by Alícia Adserà, research scholar and lecturer at the Woodrow Wilson School and the Office of Population Research at Princeton University, and Marta Tienda, the Maurice P. During ’22 Professor in Demographic Studies and professor of sociology and public affairs at Princeton University.
The co-editors note, “The articles in this volume offer new insights on child migration, social integration and child well-being, drawing comparisons from traditional and ‘new’ immigrant-receiving nations and providing important recommendations for successful integration of youths with migration backgrounds.” Published by Sage, the volume features the following articles:
• “Comparative Perspectives on International Migration and Child Well-being” by Alícia Adserá and Marta Tienda
• “Migrant Youths’ Educational Achievement: The Role of Institutions” by Deborah A. Cobb-Clark, Mathias Sinning, and Steven Stillman
• “Educational Achievement Gaps between Immigrant and Native Students in Two “New” Immigration Countries: Italy and Spain in Comparison” by Davide Azzolini, Philipp Schnell, and John R. B. Palmer
• “The Educational Expectations of Children of Immigrants in Italy” by Alessandra Minello and Nicola Barban
• “Child-Parent Separations among Senegalese Migrants to Europe: Migration Strategies or Cultural Arrangements?” by Amparo González-Ferrer, Pau Baizán, and Cris Beauchemin
• “Age at Immigration and the Adult Attainments of Child Migrants to the United States” by Audrey Beck, Miles Corak, and Marta Tienda
• “Fertility Patterns of Child Migrants: Age at Migration and Ancestry in Comparative Perspective” by Alícia Adserà, Ana M. Ferrer, Wendy Sigle-Rushton, and Ben Wilson
• “Nativity Differences in Mothers’ Health Behaviors: A Cross-National and Longitudinal Lens” by Margot Jackson, Sara McLanahan, and Kathleen Kiernan
• “Race/Ethnic and Nativity Disparities in Child Overweight in the United States and England” by Melissa L. Martinson, Sara McLanahan, and Jeanne Brooks-Gunn
• “How Do Children of Mixed Partnerships Fare in the United Kingdom? Understanding the Implications for Children of Parental Ethnic Homogamy and Heterogamy” by Lucinda Platt
“As the nations of the world gather for this year’s United Nations General Assembly, it is our hope that the delegates look at these critical issues impacting our world’s children,” say Adserà and Tienda. “The findings in this volume can help leaders shape policies that will have a profound positive effect on the world’s migrating children.”
A summary and the full introduction to the volume are available.
Border Crossing: Citizenship, Race, Gender Conference
Border Crossing: Citizenship, Race, Gender is a two-day interdisciplinary symposium at MIT as part of the WGS Borders Research Initiative along with the CB/BS and MIT French Studies. Background: The Borders Research Initiative in Women and Gender Studies at MIT brings together an interdisciplinary group of MIT faculty in the humanities, arts and social sciences as well as experts from outside the academy (including lawyers, activists, and artists) in order to examine issues of border-crossing and citizenship, especially as they intersect with gender, sexuality, race, ethnicity, class and religion. We seek to understand national borders and border crossings in historical perspective, in order to explore how concepts of citizenship, identity, gender and race have evolved over time, and to gain clarity on the contemporary manifestations of these issues. Click the link above for the full program.
Parenting Behavior, Health, and Cognitive Development among Children in Black Immigrant Families: Comparing the United States and the United Kingdom
Racial disparities in child development in the United States are striking, with a particularly pronounced disadvantage among Black children. As an increasingly significant share of Black children have immigrant parents, it is important to examine whether their development parallels that of their Black peers in native-born families or is more similar to that of children in other immigrant families.
In Parenting Behavior, Health, and Cognitive Development among Children in Black Immigrant Families: Comparing the United States and the United Kingdom, Brown University sociologist Margot Jackson focuses on the development of young children of Black immigrants (from birth to age 5), comparing their outcomes to children of immigrants and those with US-born parents from a variety of racial/ethnic backgrounds.
The report also compares children in the United States to those in the United Kingdom, where there is a large Black immigrant population but a notably different policy context of reception. Jackson uses data from two national samples that include Black African and Caribbean mothers in the United States and the United Kingdom to examine parenting behaviors that might affect children’s birth outcomes, development during the preschool years, and school readiness at entry to kindergarten.
The largely similar direction and magnitude of parenting and development patterns among Black children in immigrant families across the two countries is notable despite numerous differences in policies related to immigration, health care, governmental support for new parents, and social services that might predict greater cross-country variation. Using the US Fragile Families and Child Wellbeing Survey and the UK Millennium Cohort, Jackson finds evidence in both countries of favorable breastfeeding patterns among Black immigrant mothers and high usage of early prenatal care among all mothers. Black immigrant mothers’ healthy prenatal behavior is paralleled by the healthy birth weight of their children and, in the United Kingdom, by these children’s lower asthma risk at age 5. However, Black children regardless of nativity have weaker verbal development in both countries, a disadvantage that is particularly pronounced among children whose mothers are immigrants in the United Kingdom.
Her findings offer a first step toward understanding the outcomes experienced by Black immigrant families, suggesting that the development of children in these families exhibits both favorable and disadvantaged patterns, as do these children’s social integration in their host societies.
Crimes & Immigration SeminarFrom the Immigrant Legal Resource Center:
Presented by Norton Tooby, Law Offices of Norton Tooby, and Kathy Brady, Immigrant Legal Resource Center
In the morning, participants will be able to choose one of two tracks focusing on either "Immigration Relief for Criminal Cases" or "Criminal Defense of Immigrants," and after lunch, a joint afternoon session features the following topics: "Immigration Consequences of Crimes" and "Post-conviction Relief for Immigrants."
Date: Saturday, October 20, 2012
Time: 9:00 am - 5:00 pm (Registration begins at 8:30 am)
Location: USF School of Law, Kendrick Hall, Rooms 101 & 102
2130 Fulton Street, San Francisco, CA 94117
For more information and to register, please visit the Law Offices of Norton Tooby's website.
The Obama Administration on New Citizens and the U.S. Constitution
To commemorate the 225th anniversary of the signing of the U.S. Constitution, the White House and federal government agencies have come together to celebrate our heritage and founding principles during Constitution Day and Citizenship Day. In his Presidential Proclamation for Constitution Day and Citizenship Day, President Obama remarked:
“For more than two centuries, our country has drawn enterprising men and women from around the world -- individuals who have sought to build a life as good as their talents and their hard work would allow. Generations have crossed land and ocean because of the belief that, in America, all things are possible…Across our country, Americans are working side-by-side with our Nation's newest citizens to build strong, welcoming communities that embrace the talents and contributions of all their members.”
On September 11, 2012, Senior Advisor to the President Valerie Jarrett spoke to new citizens at a naturalization ceremony in Alexandria, Virginia. The ceremony welcomed 26 new citizens and also recognized our Nation’s heroes - Americans who keep our country safe and protect our cherished freedoms, including those who have sacrificed their lives defending us in our Armed Forces.
Valerie Jarrett described the event as “a day of celebration… and a day of remembrance” explaining the reasoning behind September 11th as a National Day of Service:
“Because we are one American family that fundamentally believes I am my brother’s keeper. I am my sister’s keeper. And we look out for each other, every single day. We honored the memory of those we lost on September 11th by welcoming new members into our family. As our newest Americans, they remind us of how precious citizenship is – of how much it is worth, and why it’s worth protecting, and why we should never take it for granted.”
To read more about this Naturalization Ceremony, click here.
Immigration Article of the Day: Governors! Seize the Law: A Call to Expand the Use of Pardons to Provide Relief from Deportation by Stacy Caplow
Governors! Seize the Law: A Call to Expand the Use of Pardons to Provide Relief from Deportation by Stacy Caplow Brooklyn Law School. Boston University Public Interest Law Journal (Forthcoming).
Abstract: An obscure provision of the Immigration and Nationality Act allows an immigrant convicted of a wide range of crimes that are grounds for deportation to avoid this fate if pardoned by a chief executive. In the current era of expansion of the categories of crimes that constitute grounds for deportation and the shrinkage of equitable forms of relief, a pardon presents a vehicle for ameliorating these harsh effects. But few presidents or governors take advantage of this opportunity, even when the individual facing deportation is a long-term lawful resident whose transgression occurred long ago. During a few months in 2010, New York Governor David A. Patterson broke this trend to establish a pardon panel specifically to consider applications from immigrants. This article argues that Governor Patterson's resolute and courageous, but ephemeral example presents a model for governors in all states to exercise discretion on behalf of individuals who deserve the exercise of mercy and justice that a full and unconditional pardon confers, particularly when the permanent exile they face far exceeds their wronging and is disproportionate to their well-established character.
September 26, 2012
U Visa Trainings in Los AngelesFrom the Immigrant Legal Resource Center:
Register now for two advanced seminars in Los Angeles that will expand and deepen your understanding of U visa issues. Joining us at both seminars will be Scott Whelan, USCIS Adjudications Officer, from USCIS Headquarters Office of Policy and Strategy. Scott will answer questions and provide updates, in addition to a panel of U visa experts and seasoned practitioners, to address cutting edge issues that come up for legal services providers representing complex cases. We'll also be joined by numerous law enforcement agency U certifiers, including the Los Angeles Police Department, Los Angeles County Department of Children and Family Services, Los Angeles County Sheriff's Department, Los Angeles County City Attorney's Office and more.
Co-sponsors: Asian Pacific American Legal Center, CARECEN, Immigration Center for Women and Children, Legal Aid Foundation of Los Angeles, Neighborhood Legal Services of Los Angeles County, Public Counsel and Southwestern Law School Immigration Law Clinic
Location: Southwestern Law School, 3050 Wilshire Blvd., Los Angeles, CA 90010
U Nonimmigrant Status
Date & Time: October 26th from 9:00 am - 12:30 pm
Registration Deadline: 10/17/12
MCLE: 3.25 CA
U Adjustment of Status and Other Advanced Issues
Date & Time: October 26th from 1:30 pm - 4:30 pm
Registration Deadline: 10/17/12
MCLE: 2.75 CA
More Latino Students Taking S.A.T.From the Press-Enterprise:
SAT results released Monday, Sept. 24, by The College Board show that for the first time, Latino students in California [and Texas] public schools represented a larger percentage of SAT test-takers than any other ethnic group, the state announced.
Latinos are the largest ethnic group in public schools in the Inland area.
In 2011-12, Latinos made up almost 60 percent of all students in Riverside County and whites made up almost 34 percent, according to the California Department of Education.
Latinos made up more than 61 percent and white students made up more than 21 percent of all students in San Bernardino County.
The SAT test is taken by high school students interested in attending the University of California, Cal State University and other four-year colleges and universities.
Reflecting the state’s growing diversity, almost 70 percent of California’s public school test-takers in the Class of 2012 were minority students, and of those, 36 percent — or 69,832 students — were Latino. This compares to 29 percent — or 56,590 test-takers — who were white; 22 percent — or 42,121 test-takers—who were Asian; and 7 percent — or 13,101 test-takers — who were African American.
Nearly half of public school SAT takers in California reported that English was not exclusively their first language and that their parents’ highest level of education was a high school diploma or less. Read more...
September 25, 2012
Law Student Summer Clerkships 2013 -- Legal Aid Society - Employment Law Center
The Legal Aid Society - Employment Law Center, a nonprofit public interest law firm based in San Francisco, is currently interviewing candidates for two summer 2013 clerkship positions in its National Origin, Immigration, and Language Rights Program. The National Origin Program focuses on challenging employment practices that disproportionately impact immigrant workers, particularly including discrimination on the basis of one's immigration status, citizenship, or linguistic characteristics; among other things, it has extensively litigated cases seeking to protect and expand the ability of undocumented workers to seek legal remedies for workplace abuses. Students working with the Program can expect to participate in all aspects of its work, including case development, litigation at the trial and/or appellate levels, and direct services work through the Program's Language Rights Information Line. Interested students should send a cover letter, resume, transcript, three references, and (preferably two) writing samples as soon as possible to Christopher Ho, the Program's director, at email@example.com.
GOP Rising Star Mia Love: "Anchor Baby"?
This Mother Jones article GOP Rising Star Mia Love: "Anchor Baby"? reports on Mia Love, a GOP rising star who is vying to become the first black Republican woman elected to the House. Last month, she spoke at the Republican National Convention. She told her parenbts' story of coming to America from Haiti with $10 in their pockets.
Love, mayor of the small town of Saratoga Springs, Utah, has been widely spotlighted as a politician who is going places in the GOP. Recently, she served as an official surrogate for Mitt Romney on a campaign swing through Nevada, and she was the master of ceremonies at a fundraiser for him in Utah. "Though a child of immigrants, Love has embraced much of her party's tough stance on immigration."
UPDATE (September 28, 2012): Stuart Anderson, president of the National Foundation for American Policy, on whether Utah Republican Mia Love is an "anchor baby" and the GOP's confusing rhetoric on immigration.
NEW REPORT EXPOSES INHUMANE USE OF SOLITARY CONFINEMENT IN IMMIGRATION DETENTION SYSTEM
Immigrants in detention facilities around the United States are often subjected to punitive and long-term solitary confinement and denied meaningful avenues of appeal, according to an investigation by two human rights groups. Investigators with Heartland Alliance’s National Immigrant Justice Center (NIJC) and Physicians for Human Rights (PHR) surveyed conditions in more than a dozen detention centers and county jails that contract with U.S. Immigration and Customs Enforcement (ICE). Their report, Invisible in Isolation: The Use of Segregation and Solitary Confinement in Immigration Detention, is the first comprehensive examination of the effects of solitary confinement on immigration detainees.While the harm caused by solitary confinement to inmates in prisons and jails has been well documented, the new report shows that solitary confinement of immigrants in detention is often arbitrarily applied, inadequately monitored, harmful to their health, and a violation of their due process rights. In the report, NIJC and PHR call on ICE and Congress to end solitary confinement in immigration detention, severely limit other forms of segregation, and implement stricter oversight of the detention system.
Distrust from Using Border Patrol Agents as InterpretersFrom the Immigration Policy Center:
For Press and Hill Staff
**Telephonic Press Briefing - TODAY, Tuesday, Sept. 25, 3:30pm EST **
Immigration Policy Center to Release Paper on Border Patrol Agents’ Abuse of Their Role as Interpreters along the Northern Border
Washington D.C. - Advocates along the Northern Border report a recent, sharp increase in the use of U.S. Border Patrol (USBP) agents to provide interpretation services to state and local law enforcement officers and emergency responders. The Use of U.S. Border Patrol Agents as Interpreters along the Northern Border: Unwise Policy, Illegal Practice by Lisa Graybill documents how local police officers reach out to USBP for interpretation assistance and capitalize on these opportunities to aid immigration enforcement. These practices breed distrust between immigrant communities and the officers whose job is to serve and protect them.
Join us for a discussion with:
Lisa Graybill, Esq., Author
Ryan Bates, Director, Alliance for Immigrants Rights and Reform
Melissa Crow, Director, Legal Action Center
Michele Waslin, Sr. Policy Analyst, The Immigration Policy Center (moderator)
When: TODAY, Tuesday, Sept. 25,2012 at 3:30pm EST
RSVP: For dial in directions contact Wendy Sefsaf at firstname.lastname@example.org
Immigration: A Citizens' Solutions Guide
Here is a preview of "Immigration: A Citizens' Solutions Guide," a forthcoming voter resource from nonpartisan Public Agenda that aims to improve the election dialogue on immigration reform. Public release will be tomorrow, Wednesday September 26.
The United States is currently experiencing one of the biggest waves of immigration in its history, and the foreign-born make up a fifth of our workforce. As we sort out how immigration reform fits into the context of fixing our economy and adding more jobs in a changing workforce, citizens need to understand what's really at stake, outside the often manipulative chatter of overly-partisan politics. Moreover, while the majority of Americans agree that our nation's immigration policy is in dire need of reform, the public lacks consensus or certainty regarding how to change the system. Government gridlock and pandering to extremes certainly don't help.
"Immigration: A Citizens' Solutions Guide" provides the background necessary for understanding the complexity of the issue, examining authorized versus unauthorized immigration and how both affect our economy. It also helps citizens weigh the real tradeoffs that emerge from some of the approaches endorsed by candidates and policymakers from across the political spectrum. These options include:
Dramatically strengthen the enforcement of current laws and reduce the level of legal immigration.
Match immigration policy to the needs of the economy.
Reform the system to take advantage of the enormous social and economic contributions of immigrants.
The guide is part of a suite of Solutions Guides from Public Agenda. The Citizens' Solutions Guide series combines Public Agenda's research and engagement expertise with our nonpartisan credibility to create a unique resource for voters. The guides get voters out of an either/or, politicized frame of thinking to start focusing on practical solutions. With the help of these guides, voters head to the polls having considered the tradeoffs and consequences of their vote.
Visit this website for more information. "Immigration: A Citizens' Solutions Guide" will be released publicly tomorrow.
September 24, 2012
Guatemalan Massacre Survivor Granted AsylumFrom ProPublica:
ProPublica's Sebastian Rotella reports that a man who survived a Guatemalan massacre that left 250 people dead and moved to the U.S., was granted political asylum on Saturday and may remain in America.
ProPublica and This American Life reported on the story of Oscar Ramírez Castañeda earlier this year, explaining how he had been abducted as a 3-year-old boy by an officer in a commando unit that wiped out all of the residents in the small village of Dos Erres, Guatemala. Ramírez Castañeda, who was too young to remember what happened, was raised by the commando's family and then left Guatemala to move to America. Guatemalan prosecutors eventually found Ramírez Castañeda and used his DNA as evidence to help convict five soldiers who participated in the massacre. And last Friday, another suspect was extradicted to the U.S. on immigration charges related to the case.
"The development opens a panorama of opportunities to Ramírez Castañeda afer 14 years of living in the shadows in the United States," writes Rotella. "The U.S. government's decision to grant asylum status to Ramírez Castañeda ratifies his claim that he could be in danger of persecution in Guatemala. He is living proof of a crime carried out by a military that retains great power in a nation racked by lawlessness and corruption."
Ramírez Castañeda's wife also received asylum status. Read the full story here - We hope you'll check these new developments out and share them with your readers.
Argument Preview: The “War on Drugs” Meets Immigration Law (Again) in Moncrieffe v. Holder
In the 2011 Term, the Supreme Court decided three cases involving the removal from the United States of immigrants with criminal convictions. On October 10, 2012, the Court will hear oral arguments in another case falling into this category, Moncrieffe v. Holder.
Angel Arias, Pamela Karlan of the Stanford Law School Supreme Court Litigation Clinic, and Thomas C. Goldstein of Goldstein & Russell represent petitioner Adrian Moncrieffe. The Solicitor General's office, of course, is representing the U.S. government.
Since the late 1980s, Congress has regularly amended the immigration laws in ways that have facilitated the removal from the United States of increasing numbers of noncitizens convicted of criminal offenses. Among other things, Congress has greatly expanded the definition of an “aggravated felony,” the conviction of which can subject a lawful permanent resident to mandatory detention and removal (and makes him or her ineligible for various forms of relief from removal).
For its part, the executive branch has doggedly pursued “criminal aliens,” including many noncitizens guilty of relatively minor criminal offenses. The Obama administration has annually set removal records, with nearly 400,000 immigrants removed from the United States in fiscal year 2011.
In Carachuri-Rosendo v. Holder, the Supreme Court in 2010 rejected the U.S. government’s aggressive position in seeking to remove a noncitizen with a relatively minor drug conviction, a misdemeanor conviction under Texas law for possession of one tablet of an antianxiety medication. It was a second offense – the first was for a misdemeanor marijuana possession -- and recidivist drug possession is a felony under the Controlled Substances Act. The U.S. government treated the state misdemeanor conviction as a felony under the Act and sought to deport a lawful permanent resident from Mexico as an “aggravated felon.” The Fifth Circuit in an opinion by Chief Judge Edith Jones agreed. The Supreme Court, however, rejected the conclusion that the minor drug conviction constituted an “aggravated felony.” Following what is known as the categorical approach, the Court held that the conviction itself must include each of the findings necessary to render the conviction a felony under the Controlled Substances Act. In so holding, Justice Stevens wrote that
We do not usually think of a 10-day sentence for the unauthorized possession of a trivial amount of a prescription drug as an “aggravated felony.” A “felony,” we have come to understand, is a “serious crime usually punishable by imprisonment for more than one year or by death.”
At age 3, Adrian Moncrieffe in 1984 legally entered the United States from Jamaica with his family. He grew up and started his own family, including two children who are U.S. citizens, in the United States. Moncreiffe’s brief states that “he has almost no remaining ties to Jamaica.”
In 2009, local police in Georgia pulled over Moncrieffe. Officers found 1.3 grams of marijuana in the car, roughly two-and-a-half marijuana cigarettes. (Although not an issue in the case, the facts of the police stop have the indicators of racial profiling.). The state charged Moncrieffe with possession of marijuana with intent to distribute under a broad Georgia statute that criminalizes the social sharing of small amounts of marijuana as well as the distribution of larger amounts. As a first time offender, Moncrieffe pleaded guilty and completed probation without incident.
Two years after the plea bargain, U.S immigration officials detained Moncrieffe and sought to remove him from the United States, claiming that the Georgia conviction was an “aggravated felony.” Under the immigration laws, “illicit trafficking in a controlled substance,” a “felony punishable under the Controlled Substances Act,” is an “aggravated felony.”
The Board of Immigration Appeals ordered Moncrieffe removed. The Fifth Circuit, in an opinion by Chief Judge Edith Jones, denied a petition for review. Following Fifth Circuit precedent, the court declined to follow the Second and Third Circuits that have held that convictions like Moncrieffe’s – in which there is no finding of drug quantity or remuneration – is not an “aggravated felony.”
What is perhaps most striking about the facts of Moncrieffe v. Holder is that a traffic stop and conviction for possessing less than two marijuana cigarettes put Moncrieffe’s entire life in the United States in jeopardy. What also is striking is that possession of such a small quantity of marijuana can lead to a conviction under a state law prohibiting the possession with intent to distribute.
The question before the Supreme Court is whether a conviction under a state law that includes but is not limited to possession of a small amount of marijuana without remuneration may constitute an aggravated felony, notwithstanding that the record of conviction does not definitively establish that the immigrant was convicted for conduct that would constitute a felony under federal law.
The Parties’ Arguments
Petitioner argues that, under the categorical approach, his conviction fails to establish that he was convicted of a felony under the Controlled Substances Act (CSA). His plea under the Georgia statute may correspond to either a misdemeanor or a felony under the Act. Consequently, he cannot be deemed to have been convicted of an “aggravated felony.”
The U.S. government contends that, because of the elements of the state offense correspond to the elements of a felony under the CSA, Moncrieffe’s conviction is “presumptively” an “aggravated felony.” It contends that the noncitizen has the ability to establish facts at the immigration court hearing to defeat the presumption that the crime would be a felony under federal law.
Four amici briefs were filed, all in support of the Petitioner, by the Center on the Administration of Criminal Law, Human Rights First, Immigration Law Professors, and the National Immigrant Justice Center et al. I was one of the amici law professors on the immigration law professors amici brief, which contends that the U.S. government’s approach (1) is contrary to a century of judicial precedent; and (2) would lead to the incredible result that minor marijuana possession convictions are “drug trafficking aggravated felonies” under the immigration laws.
The Supreme Court in Moncrieffe v. Holder will once again have the opportunity to interpret the complex immigration laws in a case involving the immigration consequences of a criminal conviction. The Court has decided important cases in this area in recent years, especially in the 2010 decision in Padilla v. Kentucky in which the Court held that a long-term lawful permanent resident could base an ineffective assistance of counsel claim on the failure of a criminal attorney to inform him of the immigration consequences of a criminal conviction.
A decision in Moncrieffe v. Holder will likely offer further guidance to the lower courts on the proper approach to defining the term “aggravated felony” for purposes of the removal provisions of the immigration laws. The Court can clarify the categorical approach, which is an important tool applied to the removal cases of thousands of lawful permanent residents facing removal based on criminal convictions.
The Court’s decision in Carachuri-Rosendo v. Holder offers hints that Moncrieffe may well prevail and that the U.S. government’s aggressive position will be rejected. Importantly, the Court has not reflexively ruled against the noncitizen convicted of a crime but in fact has decided a majority of the immigration criminal consequences cases in recent years in favor of the immigrant.
Last but not least, as is customary in immigration cases, the Court may again address the proper deference to the Board of Immigration Appeals in interpreting the Immigration & Nationality Act.
From the Bookshelves: Killing the American Dream: How Anti-Immigration Extremists are Destroying the Nation by Pilar Marrero
Next week, Palgrave Macmillan will publish Killing the American Dream: How Anti-Immigration Extremists are Destroying the Nation by Pilar Marrero. As the United States government deports record numbers of undocumented immigrants and local and state governments scramble to pass laws resembling dystopian police states where anyone can be questioned and neighbors are encouraged to report on one another, violent anti-immigration rhetoric is growing across the nation. Against this tide of hysteria, Pilar Marrero reveals how damaging this rise in malice toward immigrants is not only to the individuals, but to our country as a whole. Marrero explores the rise in hate groups and violence targeting the foreign-born from the 1986 Immigration Act to more recent legislative madness of laws like Arizona’s SB1070, which allows law officers to demand documentation from any individual with “reasonable suspicion” of citizenship. Marrero reveals the economic drain these ardent anti-immigration policies are causing, as they deplete the nation of an educated work force, undermine efforts to stabilize tax bases and social security, and turn the American Dream from a time honored hallmark into an unattainable fantasy for all immigrants of the present and future.
Killing the American Dream is a timely look at the evolution of U.S. immigration policy and how anti-immigration rhetoric and behavior are doing more harm than good to America and the dream upon which this country was built.
September 23, 2012
As Show-Me-Your-Papers Goes into Effect, Residents are Trained to RespondFrom the CBS Evening News:
Civil rights groups teaching residents in Arizona how to use cell phones to record video if stopped by the police. The training session was a response to Arizona's law that took effect this week. It allows police to investigate the immigration status of anyone they stop, giving rise to fears of racial profiling.
Defenders of the law say police will not use race when deciding whom to question about immigration status.
"The focal point is the conduct, not the color of the skin," said Maricopa County Attorney Bill Montgomery. "And that allows police officers to fairly distinguish between those who by the virtue of their conduct then come under suspicion for investigation, and those who aren't."
But those who came to this meeting fear they will be targets of the law and that their families will be divided.
"We've seen in many of these communities that a lot of parents have the punishment for being here without documents has been losing their kids," said Diana Ramirez from the civil rights group Puente, "and not being reunited when they are deported." Read more...