December 14, 2012
Immigration at the AALS Annual Meeting
The Association of American Law Schools Annual Meeting is in New Orleans from January 4-7 this year. As usual, the annual meeting has numerous immigration programs.
“The Civil Rights Consequences of State and Local Responses to Immigration and Immigrants,” a joint program of the Immigration Law and Civil Rights Sections, will be held on Saturday, January 5, 10:30 am – 12:15 pm (Melrose, Third Floor, Hilton).
Moderator: Muneer Ahmad, Yale Law School
Speakers: Christopher Lasch, University of Denver Sturm College of Law; Maria Pabón López, Loyola University New Orleans College of Law; Hiroshi Motomura, University of California, Los Angeles, School of Law; Michael Wishnie, Yale Law School
Although immigration law is a subject of federal, rather than state law, the laws that regulate immigrants in their daily lives are most often passed by or enforced by state governments. Like all residents of the United States, immigrants are subject to a broad range of state laws and policies. These laws and their application sometimes affect immigrants – both documented and undocumented – in unique ways because of their status as immigrants. Recent years have seen increasing attention to the ways in which the civil rights of immigrants may be violated by state laws and their enforcement in areas such as education, criminal enforcement, and voting rights. This panel will consider this phenomenon, exploring how the lived experiences of immigrants in this country present unique civil rights challenges that have transformative impact on state laws and policies.
The Section on Immigration Law Business Meeting is on Friday, January 4, 5:30 – 6:30 pm Norwich, Third Floor, Hilton New Orleans Riverside.
In addition, there is a program on "Immigration, Emigration and Migration" at the Annual Meeting of the American Society for Political Legal Philosophy on Friday, January 4, 8 am – 2 pm Crescent Room, 11th Floor, Westin New Orleans Canal Place, 100 Rue Iberville. For more information, click here. Paper presenters and commentators include Judith Resnik (Law, Yale) James Bohman (Philosophy, Saint Louis University), Jennifer Hochschild ( Political Science, Harvard), Nancy Rosenblum (Political Science, Harvard), Sarah Song (Political Science, UC Berkeley), Adam Cox (Law, NYU), Michael Blake (Philosophy, University of Washington), Robin West (Law, Georgetown), Tom Christiano (Philosophy, University of Arizona), Arash Abizadeh (Political Science, McGill), Cristina Rodriguez (Law, NYU), and Jeremy Waldron (Law and Political Science, Oxford and NYU).
Thank you, Anil, César and Karla!
"Truly Civil" Torture
Posted by Anil Kalhan
Last week, the New York Civil Liberties Union filed a lawsuit challenging the state of New York’s routinized use of solitary confinement and other forms of extreme isolation in its prison system as violating the Eighth Amendment. According to the complaint, which draws from a report that the organization published earlier this year, New York uses extreme isolation as an administrative sanction more extensively than any other prison system in the country. From 2007 to 2011, the state imposed over 68,000 extreme isolation sentences for violations of prison rules, and on any given day, it holds approximately 4,500 individuals – constituting fully 8 percent of its total prison population – in its “Special Housing Unit” isolation cells.
As the NYCLU recounts, the circumstances and consequences of such extreme forms of confinement are exceptionally severe:
Every day, nearly 4,500 prisoners across New York live in extreme isolation, deprived of all meaningful human interaction or mental stimulation, confined to the small, barren cells where they spend 23 hours a day. Disembodied hands deliver meals through a slot in the cell door. “Recreation” offers no respite: An hour, alone, in an empty, outdoor pen, no larger than the cell, enclosed by high concrete walls or thick metal grates. No activities, programs or classes break up the day. No phone calls are allowed. Few personal possessions are permitted. These prisoners languish in isolation for days, weeks, months and even years on end.
* * *
Extreme isolation harms prisoners and corrections staff. . . . The emotional and psychological harm prisoners experience in extreme isolation is compounded by the formal and informal deprivation of basic necessities, including food, exercise and basic hygiene. Prisoners buckling under the emotional and psychological weight of isolation and deprivation often lack access to adequate medical and mental health care. For corrections staff, working in extreme isolation has lasting negative consequences that affect their lives at work and home.
* * *
Extreme isolation negatively impacts prison and community safety. People in extreme isolation find its psychological effects fuel unpredictable and sometimes violent outbursts. . . . Prisoners carry the effects of extreme isolation back into the general prison population. They also carry them home. Nearly 2,000 people in New York are released directly from extreme isolation to the streets each year. [link]
Prison rules confer broad discretion upon corrections staff to determine which disciplinary infractions warrant extreme isolation as a sanction, with limited independent oversight or procedural protections for individuals charged with violations. The NYCLU’s investigation reveals the extensive, arbitrary use of extreme isolation to punish a sweeping array of minor rules violations, including “smoking in an undesignated area,” “wasting food,” “littering,” and “untidy cell or person.” Far from confining its use to short periods of confinement for truly exceptional circumstances, New York officials have instead relied upon extreme isolation “as a disciplinary tool of first resort for violating almost any prison rule, no matter how minor” – and in many cases, for prolonged and indefinite periods extending for months and even years. Even the Commissioner of New York’s Department of Corrections and Community Supervision, Brian Fischer, has publicly acknowledged that the state’s prison system “overuse[s]” extreme isolation.
* *Conservative estimates indicate that tens of thousands of individuals nationwide – along a continuum ranging from short-term disciplinary segregation in isolation cells for days or weeks to long-term confinement under circumstances of extreme sensory deprivation in dedicated “supermax” facilities – are confined at any given time under circumstances of extreme isolation, which has become a central instrument in the criminal justice system’s strategy of “exclusion and control.” Indeed, Sharon Dolovich goes further to suggest that the logic of supermax might be “critical to the success of the entire carceral enterprise,” insofar as it seeks to “neatly contain” any possibility of disorder or disruption within prisons – and thereby to ensure that the very existence of individuals in prison, much less the circumstances of their incarceration, need not intrude upon the public consciousness.
Still, it is widely understood, as Keramet Reiter puts it rather plainly, that “[s]olitary confinement makes people crazy.” Even seemingly short periods of time in isolation can cause grave harms. In a 2011 report, the U.N. Special Rapporteur on Torture, Juan Mendez concluded that as implemented in many countries, including the United States, solitary confinement amounts to cruel, inhuman, or degrading treatment or punishment – and can even rise to the level of torture. Mendez concluded that solitary confinement should never exceed 15 days, given the potentially irreversible psychological harms that can result and, even when used for shorter periods, should only be used in exceptional circumstances as a last resort, and should be limited to definite terms that are as short as possible, communicated to incarcerated individuals, and subject to daily review by qualified medical and mental health professionals.
In recent years, lawyers, scholars, activists, journalists, bar associations, officials, and prisoners themselves have been increasingly effective in bringing concerns about extreme isolation into public view, documenting the ways in which solitary confinement and other forms of extreme isolation cause severe physical, emotional, and psychological harms and compromise safety prison and community safety – particularly when individuals are subjected to prolonged or indefinite periods of isolation. Activists Shane Bauer and Sarah Shourd, for example – who were subject to prolonged solitary confinement in Iran after being detained while hiking near the Iran-Iraq border in 2009 – have effectively used their ordeal in Iran as a springboard to draw attention to concerns over extreme isolation in the United States. The NYCLU’s lawsuit was preceded earlier this year by a lawsuit challenging California’s use of prolonged solitary confinement, and just last month, a federal district court in Massachusetts held that a prisoner’s solitary confinement for 10 months (for throwing pudding at another prisoner) without due process was unlawful. A number of states, including Mississippi, Colorado, and Maine, have taken steps to reduce the number of individuals subject to solitary confinement. And in Washington, Sen. Dick Durbin convened the first congressional hearing drawing attention to solitary confinement in June. As with other aspects of the criminal justice system, reform advocates seeking to curtail these extreme practices – which also are extremely expensive – have ample reason to regard the present moment as one for cautious optimism.
By comparison, little sustained attention has been given to concerns over solitary confinement and other forms of excessive isolation in the nation’s massive immigration detention system, which holds an average of approximately 34,000 individuals on any given day, and close to 400,000 individuals over the course of each year, in over 250 facilities around the country. But the limited information that has been documented paints a similarly grim picture. In 2010, a report on immigration detention in the United States by the Inter-American Commission on Human Rights raised concerns about the use of isolation in a number of facilities as an effectively punitive mechanism, particularly for LGBT individuals, religious minorities, and individuals with mental illness. And earlier this year, the National Immigrant Justice Center and Physicians for Human Rights jointly published the only report to date that specifically investigates the use of segregation and solitary confinement in immigration detention facilities, which frequently commingle individuals held for both immigration and criminal justice purposes:
ICE has failed to enforce consistent segregation standards in its detention facilities. As a consequence, jails often apply local correctional policies to manage both immigration and non-immigration detainees, leading to the widespread use of solitary confinement. . . . Investigators found that solitary confinement in immigration detention facilities is often arbitrarily applied, significantly overused, harmful to detainees’ health, and inadequately monitored.
* * *
Guards have unfettered power over immigrants, who have no legal recourse for unfair custody decisions. Investigators found instances in which jails justified the use of solitary confinement to discriminate against non-English-speaking immigrants and to punish immigration detainees for violations as trivial as dressing improperly or putting their feet on tables. Failure to speak English when able; watching Spanish channels on TV; sitting on counters, tables, or railings; leaning back on chairs; horseplay; pulling pranks; and singing loudly can all lead to 23-hour lockdown according to existing policies.
* * *
According to [ICE’s 2011 detention standards] and many county policies, detention facilities have 30 days to notify ICE when they place an individual in segregation. But facilities can easily avoid ICE oversight. . . . It is unclear whether ICE tracks information related to the segregation of detainees who have been held for less than 30 days. . . . Investigators spoke with a detainee at the Oakdale Federal Detention Center (Louisiana) who was held in solitary confinement for nearly eight months without review. Guards told him they “could hold him as long as [they] wanted” and that he was not going to be released from solitary confinement. [link]
These comparable harms raise distinct concerns in the context of immigration detention, which is a form of civil custody, not criminal punishment. In 2009, the Obama administration pledged to reconstruct this quasi-punitive detention regime into what ICE director John Morton termed a “truly civil detention system.” However, as Human Rights First has documented, those ambitious proposed reforms have thus far failed to transform the detention system away from the underlying criminal correctional paradigm that has characterized immigration detention since the 1980s and 1990s. Moreover, as the NYCLU report illustrates, simply documenting the nature and scale of excessive isolation is a challenging endeavor. In the immigration detention system, these same documentation challenges are compounded by the use of hundreds of facilities across the country – facilities that are often geographically isolated, and to which independent observers often lack meaningful access – and by the overwhelming lack of access to attorneys for many detainees. ICE’s own oversight and information tracking capacities have long been criticized. As the NIJC/PHR report notes, ICE’s nonbinding detention standards do not even require facilities to report their use of segregation for 30 days – a full 15 days after the point at which the UN Special Rapporteur regards solitary confinement to presumptively violate international human rights legal standards.
The apparently routinized use of solitary confinement documented by NIJC and PHR offers perhaps the sharpest illustration of ICE’s lack of progress in transforming the detention system to date. After all, one would be hard pressed to reconcile the routine use of solitary confinement and other forms of excessive isolation – which often rises to the level of cruel, inhuman, or degrading treatment or punishment or even torture in the criminal justice context – with a paradigm of custody meant to be “truly civil,” rather than punitive in nature. It certainly remains possible that as ICE continues to implement its reform initiatives, both oversight and conditions of confinement will improve. With respect to solitary confinement and other forms of extreme isolation, however, a basic and more fundamental challenge – for both the agency and reform advocates – appears to be documenting and drawing attention to the nature and scale of the problem.
(Cross-posted at Dorf on Law)
Iranian Denied Entry for Cancer TreatmentFrom ProPublica:
ProPublica's Cora Currier reports the U.S. has denied Iranian sociologist Dr. Rahmatollah Sedigh Sarvestani permission to come here from Iran in order to get potentially live-saving medical treatment for prostate cancer and a pelvic tumor.
"His wife and several children live in the U.S., and the family had applied for humanitarian parole on his behalf - a temporary travel permit granted in extraordinary circumstances," writes Currier. The parole is discretionary, and U.S. Citizenship and Immigration Services (USCIS) did not provide an explanation for the denial (nor is it required to). Last March, Sarvestani was denied a visa on the basis of "espionage or sabotage," but it's almost impossible to refute the charges since the allegations are unknown.
Currier adds, "Sarvestani's family supposes the charges date back to his student days, but it is impossible to say what more recent information the U.S. may have. Sarvestani says that he received no indication of the security concerns from his consular office when his initial application was approved or during the years of waiting."
Sarvestani told Currier he is in constant pain, has trouble sleeping and has fallen in the street several times. His family is considering his treatment options, but because some of Sarvestani's children are U.S. citizens, his lawyer believes it might be possible to get standing in federal court. "In such cases, the government can be compelled to show that it had a 'facially legitimate' reason to deny the visa - something beyond just citing the category under which it was denied."
Read the full story here. We hope you'll take a look and share it with your readers.
Professor Kevin Lapp -- California AG: Immigration Detainers are Requests, not Commands
Professor Kevin Lapp analyzes California Attorney General Kamala Harris's recent declaration that local law enforcement agencies in the state are free to decide whether they will comply with immigration detainers issued by the federal government. Professor Lapp sees "[t]his [as] a big announcement for at least two reasons: (1) immigration detainers are a key component of immigration enforcement programs such as Secure Communities, which ostensibly target for deportation non-citizens who have committed serious crimes, and (2) California is the nation's most populous state, with the largest non-citizen population and the nation's largest criminal justice system." Click the link above to read more.
Jeff Rosenblum New General Counsel of EOIR
On Thursday, the Executive Office for Immigration Review (EOIR) today announced the appointment of Jeff Rosenblum as the agency’s General Counsel, effective December 16, 2012. Jean C. King has served in the role in an acting capacity since June 2012.
As General Counsel, Rosenblum will oversee the Office of General Counsel’s Immigration Unit, the Freedom of Information Act Office, the Employee/Labor Relations Unit, the Attorney Discipline Program, and the Fraud Program. He will also serve as EOIR’s principal liaison to other agencies on all agency-related legal matters.
Rosenblum received a bachelor of arts degree in 1994 from the University of Maryland at College Park and a juris doctorate in 1999 from Loyola University Chicago School of Law. From May 2010 to December 2012, he served as a supervisory attorney in EOIR’s Office of the General Counsel. From 2006 to May 2010, Rosenblum served as an assistant general counsel for the Executive Office for U.S. Attorneys, Department of Justice. From 2002 to 2006, he worked as an attorney for the U.S. Department of Labor, Office of the Solicitor. From 1999 to 2002, Rosenblum was in private practice in Chicago, Ill., and Washington, DC. He is also an adjunct professor at George Mason University Law School since 2005.
Rosenblum is a member of the District of Columbia and Illinois Bars.
December 13, 2012
Salt Lake City Resolves to be Immigrant Friendly
From the Salt Lake Tribune:
Immigrants should be treated with dignity and respect while being welcomed and embraced by residents and community groups — regardless of legal status — according to a resolution passed unanimously Tuesday night by the Salt Lake City Council.
The resolution is part of a national movement called "Welcoming America," with Salt Lake City joining 10 communities and 20 states that have adopted such a measure.
The resolution doesn’t state specifically whether the legal status of an immigrant should be considered in welcoming them to the city, but says "all are welcome, accepted and integrated" and it criticizes "policies that negate opportunities for contributions to our community in the fullest capacity."
Supporters of the resolution said the time was right to adopt the measure after the November election, where President Barack Obama defeated Republican nominee Mitt Romney handily while also carrying more than 70 percent of the Latino vote.
That defeat has led some in the Republican Party to reconsider their views on immigration reform, including conservative talk show host Sean Hannity, who long espoused tough immigration policies.
Jean Hill, spokeswoman for the Catholic Diocese of Salt Lake City, said the resolution was an outgrowth of The Utah Compact, which was signed more than two years ago by a coalition of religious, business and political leaders in the state. That document was a series of guiding principles that sought a more compassionate approach to immigration reform and was a refutation of Arizona’s enforcement-only law, SB1070. Read more...
Of course these efforts are to be applauded. Remember, however, that Utah passed a state law a couple years back, partially modeled on Arizona's SB 1070. The Obama administration is challenging Utah's law.
What if the Holy Family Was Torn Apart at Christmas?From the Interfaith Coalition:
Holiday Immigration Posada
POSADA POR LOS DERECHOS DE LAS FAMILIAS INMIGRANTES
International Migrants Day
Tuesday, December 18, 2012
12 noon-1:30 pm
State Building San Francisco
455 Golden Gate Ave. SF, (Civic Center BART)
What if the Holy Family was torn apart at Christmas?
This month 2400 people will be deported from California because of ICE's "Secure Communities" program.
Imagínate lo que hubiese pasado si la Sagrada Familia hubiese sido separada por la Migra en Navidad.
Levantemos nuestras voces para proteger a Nuestras Familias Inmigrantes porque también son Sagradas
The Posada, a Latin American holiday tradition, depicts Mary and Joseph's search for room at the inn in Bethlehem. In this modern day adaptation, we knock at the door of Gov. Brown, saying: Open the door of your heart to immigrant families. Sign the Trust Act (AB 4).
Sponsored by: Interfaith Coalition for Immigrant Rights -CLUE, East Bay Interfaith Immigrant Rights Coalition, SFOP, CARECEN, Causa Justa-Just Cause, ACUDIR.
Republicans Beware: Latino Groups Warn Congress to Fix Immigration, or Else
Julia Preston of the N.Y. Times reports that the nation’s largest Latino organizations yesterday warned Congressthat they will keep a report card during the immigration debate next year, with plans to mobilize their voters against lawmakers who do not support a comprehensive immigration bill. At a news conference, seven Latino groups and a labor union "were showing their muscle, after the record turnout of Hispanic voters in the November elections played a pivotal role in President Obama’s re-election victory." Janet Murguía, the president and CEO of National Council of La Raza, "said the election had been a `game-changer' that conclusively `made the political case for a bipartisan solution' on immigration."
Immigration and Child Welfare Clinician-Scholars Featured at the Hofstra Symposium on Immigrants and the Family Court
As previously announced on this blog, Theo Liebmann and Lauris Wren at Hofstra Law School put together a fantastic symposium on Immigrants and the Family Court, which was timed with the release of a special issue of the Family Court Review published by Wiley-Blackwell in conjunction with the symposium. The special issue and the symposium featured a number of immigration and child welfare clinicians whose scholarly work has brought much-needed attention to what Theo and Lauris dubbed, "unique challenges presented by working with families and children who are immigrants - both documented and undocumented - and the complex interplay between immigration issues and the family court's obligations to serve the families and children who come before it."
Braving post-Sandy clean-up and gas rationing, the symposium drew an impressive number and diversity of participants, including representatives from stakeholders in the immigration, family justice and child welfare systems as well as advocates, scholars and journalists. The day opened with a keynote address by The Honorable Edwina G. Richardson-Mendelson, the Administrative Judge of the New York City Family Court. The first two panels focused on the basics of immigration law for family law practitioners and improving how family courts serve immigrant youth and families. The latter panel, moderated by Veronica Thronson, Director of the Immigration Law Clinic at Michigan State, featured Bernard Perlmutter, Co-Director of the Children & Youth Law Clinic at U Miami and Jennifer Baum, Director of the Child Advocacy Clinic at St. John's. Veronica's article, "'Til Death Do Us Part: Affidavits of Support and Obligations to Immigrant Spouses" and Jennifer's article, "Most in Need But Least Served: Legal and Practical Barriers to Special Immigrant Juvenile Status for Federally Detained Minors" were both featured in the special issue. The afternoon concluded with a panel on collateral immigration consequences of family court proceedings and featured Associate Professor of Clinical Law, Dan Smulian who teaches the Safe Harbor Project at Brooklyn Law.
The afternoon featured two panels addressing how undocumented status affects children and families and the future of special immigrant juvenile status. I was excited to present my article, "Unintended and Unavoidable: The Failure to Protect Rule and Its Consequences for Undocumented Parents and their Children" on an interdisciplinary panel featuring a journalist and a sociologist. Journalist Seth Freed Wessler whose groundbreaking report, "Shattered Families" is so regularly relied upon by legal scholars, and Jorge M. Chavez, a sociology professor at Bowling Green State University whose research focuses on the impact of unauthorized status on children's well-being, presented their work. Jorge's findings about the adverse impact of undocumented status on family stress, health outcomes, and educational attainment, may prove useful in future legal scholarship on this issue. The second panel featured two clinicians, Alison Kamhi, Clinical Teaching Fellow in the Immigrant Rights' Clinic at Stanford and Randi Mandelbaum, Director of the Child Advocacy Clinic at Rutgers-Newark. Alison co-wrote the SIJ article with Jennifer for the special issue, which also featured Randi's article, "Disparate Outcomes: The Quest for Uniform Treatment of Immigrant Children."
The highlight of the symposium was the closing session. Closing remarks delivered by a leading scholar on the intersection of immigration and family law, David Thronson, co-founder of the Immigration Law Clinic at Michigan State, focused on how immigration law and policy actively devalues children who are defined mainly by their relationship to adults. Howard Davidson of the American Bar Association presented best-practices for improving the experience of undocumented immigrants in family courts and the child welfare system, offering some pragmatic solutions for policy makers and advocates. But the star of the session was a formerly undocumented teen who, along with Lauren Burke - a staff attorney at the New York Asian Women's Center, gave a beautiful and touching spoken word performance from the perspective of an undocumented youth trying to find her way out of an abusive household despite the odds of the immigration system being stacked against her. The performance highlighted the work of Atlas: DIY, a cooperative empowerment center for immigrant youth and their allies.
Check out all of the articles, including a note about ethical advocacy for immigrant survivors of family crisis by Theo Liebmann, at the Wiley Online Library. The full agenda, including additional presentations by staff attorneys and advocates in the field, is available here.
-- Sarah Rogerson
Top 10 Immigration News Stories of 2012
Each year, ImmigrationProf lists its top 10 immigration stories of the year. Below are the top stories for 2012, many of which are directly related to the Top 10 Stories for 2011.
1. Reelection of President Obama and the Return of Comprehensive Immigration Reform
With overwhelming support from Latino voters, President Barack Obama was reelected as President of the United States. After the election, Republicans in Congress expressed greater willingness to consider enactment of comprehensive immigration reform, and the possibility of reform in the next Congress appears to be a distinct possibility.
There were also some interesting footnotes to the Presidential campaign, including Bruce Springsteen campaigning for the President in the days leading up to the election and a DREAMER addressing the Democratic National Convention.
2. Arizona v. United States
In its biggest immigration decision in many years, the Supreme Court in June in Arizona v. United States invalidated three of four provisions of Arizona’s S.B. 1070 on federal preemption grounds. The Court, however, upheld Section 2(B), perhaps the most controversial provision, which requires police to verify the immigration status of any person who the officers have “reasonable suspicion” of being in the country unlawfully.
Also in 2012, lower federal courts invalidated significant portions of the immigration enforcement laws of Alabama, Georgia, and South Carolina. The number of pieces of state immigration legislation has been dropping.
The Supreme Court decided a number of other immigration cases in 2011-12, applying ordinary rules of statutory construction and agency deference with the immigrant winning in a number of the cases.
3. Deferred Action Against Childhood Arrivals Announced by the Obama administration
in June, the Obama administration made the blockbuster announcement that it would create the Deferred Action for Childhood Arrivals program, which would allow for deferred action and temporary work authorization for eligible undocumented immigrants who came to the United States as minors. It was one of the big immigration news items – and to many surprises – of 2012.
The continued pressure of the DREAMers on the administration should be given at least some credit for the new program. The DREAMers continued their political activism and organized a “No Papers, No Fear” bus trip to the Democratic National Convention.
DACA also created new controversies. While California decided to allow DACA recipients to be eligible for driver’s licenses, Governor Jan Brewer and Arizona quickly made it clear that Arizona would not issue licenses to DACA recipients.
4. Maricopa County, Arizona Sheriff Joe Arpaio Remains Embroiled in Controversy -- and Wins Relection
America’s Toughest Sheriff, Maricopa County Arizona Sheriff, Joe Arpaio remained in the news in 2012. Standing trial this summer for alleged civil rights violations of immigrants and Latinos, Arpaio testified in his defense.
After an investigation, the U.S. Department of Justice concluded that Sheriff Arpaio and the Maricopa County Sheriff's Office engaged in widespread violations of the civil rights of immigrants and Latinos.
Although it is not sure why the Maricopa County Sheriff's Office has jurisdiction over anything to do with the birther controversy, Sheriff Arpaio also made the news when his office investigated and finding that there just might be something to the claims of the birthers that President Obama is not a natural born U.S. citizen.
Despite all the controversy, voters relected Sheriff Arpaio in November.
5. Mass Murder in Wisconsin In Wisconsin
6. Apologies for Past Immigration Wrongs
2012 was a year of immigration apologies. The U.S. of Representatives adopted a resolution (H. Res. 683, 112th Cong. (2012)) apologizing for the Chinese Exclusion Act of 1882, which barred the admission to the U.S. of nearly all Chinese until 1943. The House sponsor was Judy Chu (D.-CA.), the first Chinese-American Congresswoman. The House’s 18 resolution follows the adoption of a companion resolution in the Senate in October 2011.
Some 80 years ago, tens of thousands of Mexicans and Mexican Americans living in L.A. County were forced aboard trains and taken to Mexico. In February 2012, the L.A. County Board of Supervisors formally -- and finally -- apologized.
7. 30th Anniversary of Plyler v. Doe
June 15, 2012 was the 30th anniversary of the Supreme Court's pathbreaking decision in Plyler v. Doe, 457 U.S. 202 (1982), which protects the rights of undocumented students to a public elementary and secondary school education.
8. The California Supreme Court Considers the Admission of Undocumented Immigrant to Practice Law
Born in Mexico, Sergio Garcia was first brought to the United States by his parents when he was 17 months old. After graduating from California State University, Chico in rural California, Garcia attended California Northern Law School, an unaccredited law school, and subsequently passed the California bar examination. He disclosed his immigration status in his bar application and, after an interview, satisfied the California State Bar that he possessed the “good moral character” necessary for the practice of law. After receiving the California State Bar’s recommendation of Garcia's admission, the California Supreme Court issued an order to show cause on why the motion for the admission of Sergio Garcia by the California bar should be granted. Briefs were filed in support of Garcia’s admission including by the California Attorney General, immigration law professors, bar associations, law school deans, and others; three briefs opposed the licensing of Garcia, one of them by the U.S. government. The U.S. government contended that 8 U.S.C. § 1621(c), which precludes the issuance of any professional license provided “by appropriated funds of a State or local government,” bars Garcia’s licensing as an attorney by the independent California state bar and California Supreme Court.
The California Supreme Court has yet to issue a decision in the case.
9. The Race for the Immigration Bottom in the Republican Presidential Primaries
In a Republican presidential debates in Arizona -- the Duel in the Desert, four Republican Presidential candidates, Mitt Romney, Newt Gingrich, Rick Santorum, and Ron Paul, debated immigration. There were no real surprises -- support for the border fence, agreement with Arizona's approach to immigration enforcement, criticism of the Obama administration, etc.
The Republican debate in Florida was a bit toned down, likely because of the different Hispanic demographic there.
All in all, the tough talk on immigration in the Republican primaries, including by Mitt Romney, may well have contributed to the landslide of Latino support for President Obama and his relection. See Item 1 above.
10. Immigrants Help Team USA in London Olympics
December 12, 2012
Colorado's Anti-Immigrant Law Could Cost State $13 Million AnnuallyRosa Ramirez writes for the National Journal:
A Colorado immigration law passed in 2006 requiring local law enforcement to report unauthorized immigrants to federal officials costs the state at least $13 million each year, according to a Denver Westword article.
The story, which cited a recent Colorado Fiscal Institute study, noted that costs rise because immigrants turned over to federal immigration officials had spent an average of 22 days longer in county jails than other arrestees.
The left-leaning Institute examined the costs of arresting, reporting, and detaining undocumented immigrants. The study focused on SB90, the 2006 law that requires all Colorado local governments to report any immigrant arrested for a crime who is suspected to be in the country illegally.
More than 145,100 undocumented-immigrant arrests were reported from 2006 to 2011. The city and county of Denver pays about $1.5 million per year to arrest and detain them, according to the study, “Misplaced Priorities: SB90 and the Costs to Local Communities.”
Some advocates criticize the law, arguing that it leads to racial profiling. They also say that it creates greater mistrust between immigrants and law enforcement, which can prevent some victims from coming forward to report a crime. Read more...
From the Bookshelves: Love and Empire: Cybermarriage and Citizenship across the Americas by Felicity Amaya Schaeffer
Love and Empire: Cybermarriage and Citizenship across the Americas by Felicity Amaya Schaeffer
The spread of the Internet is remaking marriage markets, altering the process of courtship and the geographic trajectory of intimacy in the 21st century. For some Latin American women and U.S. men, the advent of the cybermarriage industry offers new opportunities for re-making themselves and their futures, overthrowing the common narrative of trafficking and exploitation. In this engaging, stimulating virtual ethnography, Felicity Amaya Schaeffer follows couples’ romantic interludes at “Vacation Romance Tours,” in chat rooms, and interviews married couples in the United States in order to understand the commercialization of intimacy. While attending to the interplay between the everyday and the virtual, Love and Empire contextualizes personal desires within the changing global economic and political shifts across the Americas. By examining current immigration policies and the use of Mexican and Colombian women as erotic icons of the nation in the global marketplace, she forges new relations between intimate imaginaries and state policy in the making of new markets, finding that women’s erotic self-fashioning is the form through which women become ideal citizens, of both their home countries and in the United States. Through these little-explored, highly mediated romantic exchanges, Love and Empire unveils a fresh perspective on the continually evolving relationship between the U.S. and Latin America.
Immigration News from the Big Sky State: Montana Immigration Enforcement Law Challenged
Here is some interesting immigration news from the U.S./Canadian border.
Montana is not generally thought of as ground zero in the modern immigration debate, with just 2 percent of the population foreign-born. But the Montana voters decided to join the fun with a new immigration enforcement law.
On December 7, 2012, the Montana Immigrant Justice Alliance (MIJA) filed a lawsuit in Montana’s First Judicial District Court to challenge and enjoin implementation of LR-121, along with co-Plaintiffs MEA-MFT and Alisha Blair (a U.S. citizen who would likely be wrongly denied services under the law). The complaint sets forth claims based on the (1) right to privacy, (2) due process, (3) equal protection, and (4) preemption by federal law. Here is a description of the suit borrowed from the MIJA press release (linked above).
MIJA asserts that it is challenging the constitutionality of LR-121 because it violates the rights of lawful Montana residents, not just undocumented aliens. We are seeking a temporary restraining order and preliminary injunction to prevent the law from being put into effect while this litigation is pending. Unless it is enjoined, the law is scheduled to be implemented on January 1, 2012.
LR-121 was placed on the ballot by the 2011 Montana Legislature, and voters approved the referendum on November 6, 2012. However, the ballot language did not adequately express the new burdens that all Montanans, including U.S. citizens, will have to face before accessing state services. LR-121 imposes a sweeping new regulatory scheme that will affect the constitutional rights of almost all Montanans who apply for or use state services. The law now requires all Montanans to present documents to prove their citizenship or immigration status before accessing state services. The burden is now on the average Montanan to prove that they are here legally, or else they will be denied state services.
The new law also subjects applicants to being screened through a federal database to confirm immigration status, and gives state agencies unrestricted authority to report applicants to the federal government if information cannot be confirmed.
How Will This Law Impact the Average Montanan?
For the first time in Montana’s history, the state will be requiring citizens to start carrying certain papers and presenting them before they can access basic state services. To be clear, the law imposes a mandate that all applicants for services to be screened for citizenship or legal immigration status, which includes every Montana resident. This imposes a restriction on the fundamental right to pursue life’s basic necessities as provided in Article II, Section 3 of the Montana Constitution. The services that will now be conditioned on proof of citizenship include employment with a state agency, attendance a public university, ability to obtain student financial assistance, ability to obtain a license or permit to practice a trade or profession, eligibility for unemployment insurance, services for victims of crime, vocational rehabilitation, and certain services for the physically disabled.
Not All Montanans Have Proof of Their Citizenship
Not all Montanans have readily-available proof of their U.S. citizenship — in fact, studies show that nationally, about 7% of the population don’t have these documents. There are typically only two ways to prove you are a citizen: by providing a birth certificate or a U.S. passport. For many reasons, there are Montanans who don’t have copies of their birth certificates, and who have never gotten passports. Under this law, Montanans are losing privacy protections — state agencies are going to ask for your identity documents for basic services and deny you services if you can’t provide them. In addition, due to the complexities of federal immigration law and the facts and circumstances of an individual’s life, a person can be a lawful U.S. citizen, and a resident of Montana, but lack documentary proof of their citizenship.
Plaintiff Alisha Blair is a U.S. citizen who may be wrongly denied services under this law. Ms. Blair is a 22 year-old who grew up in Sunburst, Montana who automatically acquired U.S. citizenship at birth. She was born in Canada and has been residing in Montana since she was one year old. Her U.S. citizenship was transmitted to her at birth through her U.S. citizen father by operation of federal law, but she has never had any documents to prove her citizenship. Ther complaint includes an affidavit from Ms. Blair and another individual with a similar situation. The plight of a 65-year-old teacher from Fairfield, Montana provides another example of the type of person who will be caught in this system.
There are many more lawful Montana citizens like these individuals who will be wrongly denied services under this law. By treating lawful Montana residents differently, without any legitimate reason, the law violates the equal protection clause of the Montana Constitution.
Ineffective Screening Through Federal Databases
If you don’t have documents to prove your citizenship of lawful resident status, the referendum suggests that state agencies can screen you through the Systematic Alien Verification for Entitlements (“SAVE”) system, a federal database that charges between $.50 and $2.00 for each search in the system. However, there is a significant limitation with this system: The SAVE program does not contain any information on native-born U.S. citizens, or most individuals who entered the country without inspection. SAVE can only verify information contained in immigrations records. Therefore, it only includes information on individuals who have applied for or received certain immigration benefits through interaction with relevant agencies within the U.S. government. There is no federal database that is available to the State of Montana for benefit eligibility determinations that would provide a comprehensive listing of all U.S. citizens. This means that in some ways, native-born U.S. citizens may have a harder time proving their status than a lawfully residing immigrant, because if you don’t have the documents in hand, there is no alternate way to verify your U.S. citizenship. Before implementing this law, state agencies must be called upon to explain how they can implement this law without violating the rights of U.S. citizens.
Violations of the Right to Privacy and Due Process
Under LR-121, lawful Montana citizens who don’t have proof of citizenship may be wrongly denied services that they are entitled to as taxpayers. To make matters worse, there are no due process protections outlined in the law, so there is no clear way to challenge a state agency’s decision if you are wrongly denied services. There are also no restrictions in the law to protect privacy interests and limit dissemination of the information that is collected. When lawfully present U.S. citizens like Plaintiff Alisha Blair apply for state services, there is nothing prohibiting the State from classifying them as “illegal aliens” and then calling upon the Department of Homeland Security to investigate them. Indeed, the Act provides unrestricted discretion to state agencies to classify any applicant who cannot prove to the State’s satisfaction that he or she is a U.S. citizen as an “illegal alien” and report the individual to DHS. Montanans value the privacy protections in our Constitution — protections that are greater than provided under federal law and most other states. That’s why we’ve fought back against attempts to create a national identification card, and led the nation in rejecting the federal REAL ID laws. However, based on the misguided goal of targeting undocumented immigrants (even anti-immigrant groups estimate there are only 5,000 in our state) this referendum has subjected the State of Montana and its residents to far more invasive requirements than REAL ID ever contemplated.
Preemption by Federal Law
Not only does this burdensome regulatory scheme impact our constitutional rights, but it also violates federal law. Under the Supremacy Clause of the U.S. Constitution, the federal government alone has the power to enact and to enforce regulations concerning which non-citizens to admit, exclude, remove or allow to remain in the United States. The federal government has exclusive authority to classify non-citizens within this framework of laws regulating immigration. The states may not create their own distinct classifications of immigrants that differ from the classifications created by federal law. LR-121 is preempted by federal law because it utilizes its own classification of non-citizens that conflicts with federal law. Section 6(b) of the Act defines an “illegal alien” as “an individual who is not a citizen of the United States and who has unlawfully entered or remains unlawfully in the United States.” The term “illegal alien” is not defined in the Immigration and Nationality Act (“INA”) or other federal laws regulating immigration, and the definition in this law conflicts with federal laws because there are numerous categories of noncitizens who illegally entered the United States, but do not illegally remain in the United States. This is not a mere technicality, as this definition alone makes the law unconstitutional under the Supremacy Clause of the U.S. Constitution. The State of Alabama recently passed its own state law regulating immigration, and one provision was recently enjoined for the same reason, where it tried to create a separate classification of non-citizens who are entitled to different rights and privileges.
Conservatives and Progressives Alike Should Be Concerned About This Law
Whether you are a conservative or a progressive — Democrat or a Republican — LR-121 is bad policy for the State of Montana. Montana is one of the states with the least numbers of immigrants in the whole country.
The libertarian-style challenge to the Montana law differs in important respects from the various challenges to the Alabama, Arizona, Georgeia, and South Carolina immigration enforcement laws. It apparently is an attempt to build political support among relatively conservative people for the legal challenges. And it just may work!
December 11, 2012
Man Bites Dog: Alabama Deputy Sheriff Faces Deportation
Associated Press report from Abbeville, Alabama — "A Canadian man who served as a reserve deputy for 25 years in southeast Alabama is facing charges of being in the United States illegally, and the sheriff he worked for isn't happy about it."
From the Bookshelves: Randy Lopez Goes Home: A Novel By Rudolfo Anaya
A new novel by the master storyteller that explores what it means to go home When he was a young man, Randy Lopez left his village in northern New Mexico to seek his fortune. Since then, he has learned some of the secrets of success in the Anglo world—and even written a book called Life Among the Gringos. But something has been missing. Now he returns to Agua Bendita to reconnect with his past and to find the wisdom the Anglo world has not provided. In this allegorical account of Randy's final journey, master storyteller Rudolfo Anaya tackles life's big questions with a light touch. Randy's entry into the haunted canyon that leads to his ancestral home begins on the Day of the Dead. Reuniting with his padrinos—his godparents—and hoping to meet up with his lost love, Sofia, Randy encounters a series of spirits: coyotes, cowboys, Death, and the devil. Each one engages him in a conversation about life. It is Randy's old teacher Miss Libriana who suggests his new purpose. She gives him a book, How to Build a Bridge. Only the bridge—which is both literal and figurative, like everything else in this story—can enable Randy to complete his journey. Readers acquainted with Anaya's fiction will find themselves in familiar territory here. Randy Lopez, like all Anaya's protagonists, is on a spiritual quest. But both those new to and familiar with Anaya will recognize this philosophical meditation as part of a long literary tradition going back to Homer, Dante, and the Bible. Richly allusive and uniquely witty, Randy Lopez Goes Home presents man's quest for meaning in a touching, thought-provoking narrative that will resound with young adults and mature readers alike.
Cal Establish $1 Million DREAMer Scholarship Fund
U.C. Berkeley announced it has set up a scholarship fund for undocumented students -- the largest of its kind at any university in the U.S. The Dreamers Fund will initially begin with a $1 million gift from the Evelyn and Walter Haas Jr. Foundation. The gift will help nearly 200 undocumented students at UC Berkeley from 20 different countries. These students are not eligible for federal Pell grants, federally backed loans or work-study positions. The scholarships to undocumented students will be given out next fall. Another gift of $300,000 made by Elise Haas will help support a new resource center for undocumented students at Cal.
Banda Star Jenni Rivera, Daughter of Mexican Immigrants, RIP
Jenni Rivera, the Mexican-American singer and reality television star known as “the Diva of Banda,” died early Sunday in a plane crash outside Monterrey, Mexico, after a performance there. She was 43.
Rivera began recording in 1992, and her recordings often have themes of social issues, infidelity, and relationships. Her tenth studio album, Jenni (2008), became her first number-one album in the Billboard Top Latin Albums chart in the United States. In 2010, she appeared in and produced the reality TV show Jenni Rivera Presents: Chiquis & Raq-C.
A U.S. citizen by birth, Rivera was born in Long Beach, California. Her parents were immigrants from Mexico. Fans have been mourning at Rivera's home in Encino.
Rivera was a champion of immigrants rights. On May 29, 2010, tens of thousands of protesters converged on Phoenix to denounce Arizona's immigration enforcement law known as S.B. 1070. While other well-known musicians stayed away, or just signed a petition, Rivera showed up and marched five miles in scorching heat. She went on to play a full concert and gave a speech for immigrant rights and justice for the community she came from and never left.
Food for Thought: "For the first time since 1910, Hispanic immigration last year was topped by immigrants from Asia"
"The number of illegal immigrants in the U.S. dropped to an estimated 11.1 million last year from a peak of 12 million in 2007, part of an overall waning of Hispanic immigration. For the first time since 1910, Hispanic immigration last year was topped by immigrants from Asia." Click here for the story.
The Political Momentum for Comprehensive Immigration Reform Continues
Last week, I wrote about how, with the re-election of the President, the time was right for serious consideration by Congress of comprehensive immigration reform. The time seems to be getting better by the day.
CNN reports that a new national poll indicates that a majority of American voters support a pathway to citizenship for undocumented immigrants. "According to the Politico/George Washington University Battleground survey released Monday, 62% of registered voters say they back an immigration reform proposal that would allow illegal or undocumented immigrants to earn citizenship over a period of several years, with 35% opposed."
In addition, Angelo Paparelli on Nation of Immigrators writes about the emergence of a coalition of "bibles, badges, and business" in support of immigration reform. Together with the political activism of the DREAMers, it looks like immigration reform just might be coming our way. Of course, what that reform looks like remains open to discussion and debate.