Friday, April 18, 2014
Immigration Article of the Day: Seek Justice, Not Just Deportation: How to Improve Prosecutorial Discretion in Immigration Law by Erin B. Corcoran
Abstract: Bipartisan politics has prevented meaningful reform to a system in dire need of solutions: Immigration. Meanwhile there are eleven million noncitizens with no valid immigration status who currently reside in the United States and the Department of Homeland Security (DHS) does not have the necessary resources to effect their removal. DHS does have the authority through prosecutorial discretion to prioritize these cases and provide relief to individuals with compelling circumstances that warrant humanitarian consideration; nonetheless, DHS’s exercise of prosecutorial discretion is underutilized, inconsistently applied and lacks transparency.
This Article suggests a remedy – that the immigration prosecutor’s role should redefined to be one more akin to criminal prosecutors with a concomitant obligation to seek justice. Others have argued that DHS prosecutorial discretion should be subject to notice and comment rulemaking and a presumption of judicial review. However, if prosecutorial discretion is to remain a solidly executive branch prerogative to counter legislation painted with too broad a brush (a defect of almost all legislation) and a mechanism to prioritize individuals for deportation, such as violent repeat criminal offenders, it should be shielded from rulemaking and a presumption of judicial review. While immigration prosecutors are trained to support granting relief in cases where the evidence and law support a grant of relief, they do not see their role as separate from DHS agents and adjudicators, and as such do not see it as their role to seek justice.
This Article contributes to the ongoing scholarship and dialogue calling for heightened ethical obligations, guidelines and principles for attorneys appearing before the Executive Office for Immigration Review (EOIR), to meet the challenges of practicing immigration law, while promoting efficiency and fairness in an effort to restore confidence and justice to a system subject to much condemnation.
The Center for Migration Studies of New York (CMS) is in the process of publishing a series of papers by leading experts on the U.S. refugee, political asylum and temporary protection programs. The series aims to offer the most comprehensive assessment of the US refugee protection system in recent years. The papers analyze different aspects of the refugee protection system, identify gaps in protection, and offer policy recommendations to strengthen the system from a protection and security standpoint.
As part of its year-long 50th anniversary celebration, CMS invites you to an all-day symposium featuring panel discussions on these issues with series authors and other experts. The discussion will also attempt to put the US system in a broader international context. Full agenda and speakers list to follow.
Symposium on the US Refugee Protection System: Laying the Groundwork for Reform of the US Refugee, Asylum and Temporary Protection Programs
Tuesday, June 3, 2014 10am to 5:30pm Center for Migration Studies 307 East 60th Street, 6th Floor New York, NY 10022
Admission is free, but space is limited. We kindly request that you please register only if your attendance is definite. To register, complete the registration form or email your name, title, organization and email address to firstname.lastname@example.org.
Wednesday, April 16, 2014
As U.S. immigration reform moves forward in 2013, a variety of facts and figures continue to be presented around immigrants and their current and potential contributions to the U.S. economy. Ameicas Society/Council of the Americas immigration fact sheets provide key data points on why immigrants are vital to the U.S. economy and why comprehensive immigration reform is necessary for future U.S. competitiveness.
Jesse Katz in Los Angeles Magazine tells the story of enigmatic Los Angeles Dodger star Yasiel Puig, who fled Cuba by hook or by crook to Mexico and ultimately the United States. As Los Angeles Tims reporter Bill Plaschke writes,
"In an account featuring on-the-record interviews and court records, Katz details how, in June of 2012, Puig was smuggled to Mexico by members of the Los Zetas Mexican drug cartel, his trip funded by a Miami air-conditioning repairman named Raul Pacheco who was on probation for attempted burglary. The smugglers held Puig in a seedy Mexican hotel for more than two weeks while attempting to extract increased payments from Pacheco. Eventually Puig was taken from the hotel by a gang organized by Pacheco and soon thereafter joined the Dodgers by signing a $42-million contract.
The stunning timeline doesn't even scratch the surface of a compelling tale that recounts Puig's humble childhood in a tiny rural village, how he was dropped from his Cuban league team for disciplinary reasons, reports of his failed defections, and accusations that he turned in potential defectors to the Cuban government while planning his own escape."
Kudos to the GW Immigration Law Clinic. This post was written by Sydney Barron, a law student at George Washington University Law School and a member of the school’s Immigration Clinic directed by Professor Alberto Benitez. It tells about the Clinic's successful representation of a Guatemalan woman who sought asylum based on a claim of domestic violence.
Tuesday, April 15, 2014
1) 5 million more workers and their employers would pay payroll taxes
2) Unauthorized immigrants would pay an additional $109 billion in federal, state, and local taxes
3) Reform would add a net $606 billion to the Social Security trust fund
4) Reform would extend the solvency of the Medicare trust fund by four years
5) Reform would reduce the deficit by $820 billion over the next two decades
People Power: Refugee facing deportation from Sweden saved by fellow passengers refusing to let plane leave
The Indpendent reports on an interesting refugee story from Sweden. A man facing deportation from Sweden has been granted a temporary reprieve after fellow passengers aboard his flight to Iran prevented it from taking off by refusing to fasten their seat belts. A Kurd fearing persecution in his home country of Iran, Ghader Ghalamere fled the country years ago and now has two young children with his wife Fatemeh, a Swedish resident. As a result he qualifies for a residence permit himself – yet because of a quirk in immigration laws he is required to apply for it from outside Sweden. On Thursday, Mr Ghalamere was put on a flight at Östersund bound for Stockholm – and ultimately Iran itself. Gathering in the departure lounge, he and a group of supporters spoke to other passengers preparing to board the flight and explained the situation. Clearly moved, once on board the plane the other passengers refused to fasten their seat belts – a protest that prevented the pilots from being able to begin take off.
Democracy Now! reports that protesters took to the streets in more than 60 cities a week ago last on Saturday to call on President Obama to stop the deportation of undocumented immigrants. Some marked it as the date when the Obama administration likely reached its two millionth deportation. This comes as The New York Times reports that two-thirds of those deported under Obama had committed minor infractions, such as traffic violations, or had no criminal record at all. More than 5,000 children whose parents were removed from the country have ended up in foster care. But some activists say presidential action on deportations is not enough. They are focused instead on the passage of a bill in Congress that includes a path to citizenship.
The video shows a debate on this question: Should the immigrant rights movement push Obama to take executive action to immediately stop deportations, or should the focus remain on pressuring Congress to pass a comprehensive immigration reform bill? The two debaters are Pablo Alvarado, president of the National Day Laborer Organizing Network, and David Leopold, former president of the American Immigration Lawyers Association.
Center for Human Rights and Constitutional Law -- President: Act Now to Halt the Deportation Machinery
The Center for Human Rights and Constitutional Law yesterday sent a letter to President Obama in response to his request to the Department of Homeland Security on how to slow deportations. We do not believe asking for "Deferred Action Status" is enough. The letter explains how aside from granting Deferred Action Status (temporary status) to the largest possible group of immigrants, the President could also, with no change in federal laws, grant lawful permanent resident status possibly to as many as two million immigrants -- without requiring any action by Congress.
The letter spells out immediate steps the Obama Administration could take "to dramatically reduce the adverse consequences of a large undocumented population on U.S. workers and businesses, the human rights abuses suffered by these migrants, and the harsh and irrational consequences caused by the Administration’s policies of massive deportations, entanglement with local police through the so - call ed “Secure Communities” program , and unparalleled criminalization of persons who enter without inspection (so - called “Operation Streamline”)."
Monday, April 14, 2014
Sunday, April 13, 2014
Immigration Court Rules that Salvadoran General Involved in Human Rights Atrocities Should be Deported
Julia Preston of the New York Times reports that an immigration judge has found that a former defense minister in El Salvador, an ally of the United States during a civil war there in the 1980s, should be deported because of his involvement in a number of human rights violations, including the assassination of an archbishop and the massacre of more than 1,000 peasants. The immigration court decision against the former officer, Gen. José Guillermo García, was issued on Feb. 26 but only released on Friday after a Freedom of Information Act request.
The ruling found that General García was directly involved in some of the most egregious killings and torture in El Salvador at a time when the U.S. government was supporting the Salvadoran military in its battle against leftist insurgents. Judge Horn found “clear and convincing evidence” that General García “assisted or otherwise participated” in 11 violent episodes that scarred the Central American country, including the 1980 murder of Archbishop Óscar Arnulfo Romero as he was saying Mass in San Salvador. The judge also found that General García helped conceal the involvement of soldiers who killed four American churchwomen later that year. He “knew or should have known” that army troops had slaughtered the villagers, including women and children, in the hamlet of El Mozote in December 1981.
General García, now 81, was defense minister from October 1979 to April 1983. In 1990 he was granted asylum in the United States. He has been living in Florida. In 1999, a nonprofit legal group, the Center for Justice and Accountability, brought a lawsuit against General García and another former Salvadoran defense minister also living in Florida, Gen. Carlos Eugenio Vides Casanova. The group claimed that the two men had played a role in the torture of three Salvadorans. In 2002, a jury returned a $54.6 million verdict against the officers, which was upheld in 2006.
Here is the decision of the immigration court. It is likely to be appealed and General García's removal is not immnent.
Saturday, April 12, 2014
CNN reports that Jeb Bush is standing by comments on immigration reform that sparked a controversy among some conservatives. At a speech Thursday night, the possible 2016 Republican presidential candidate said that his words were nothing new, and made another pitch for reform saying that "comprehensive immigration reform is part of the answer." Last weekend, at a gathering at his father's presidential library in Texas, Bush said that people who come to the United States illegally are often looking for opportunities to provide for their families that are not available in their home countries, adding "Yes, they broke the law, but it's not a felony. It's an act of love, it's an act of commitment to your family."
Senator Ted Cruz offered a fairly even-keeled response to Jeb Bush's comments:
Abstract: The recent dramatic convergence of immigration and criminal law is transforming the immigration and criminal justice system. While scholars have begun to examine some of the structural implications of this convergence, this Article breaks new ground by examining judicial responses and specifically the lens of Miranda v. Arizona. This Article examines the divergent and largely aberrant approaches that federal appellate courts have taken to determine whether Miranda warnings and rights apply to custodial inquiries about immigration status that have clear criminal and civil implications. Part I of this Article discusses the distinctions between civil and criminal immigration laws and the background principles of Miranda. Part II synthesizes the various and inconsistent tests courts have used to determine whether Miranda applies to dual civil and criminal immigration inquiries and examines how the failure of lower courts to apply Miranda consistently in the immigration context marks an unusual shift in the Supreme Court's jurisprudence. It then explores how the emerging doctrine for immigrants departs (1) from the Court's application of Miranda to dual civil and criminal interrogations in the tax context; (2) from precedent favoring objective tests; and (3) ultimately from the animating principles in Miranda to bring clarity to police, suspects, and courts on the admissibility of statements in custodial interrogations. Part III of this Article describes the broader implications of these doctrinal shifts in light of significantly increasing federal enforcement of criminal provisions of immigration laws and the increasing number of local law enforcement officials who are untrained in immigration law and yet are involved in these prosecutions. It also analyzes the incentive structure created by federal compensation programs for local law enforcement agencies to circumvent procedural protections for immigrants, relying on new data suggesting that the government's aggressive criminal enforcement policy has raised serious constitutional issues. Finally, Part IV explores the ways in which these trends reflect declining procedural protections in the realm of criminal prosecutions for immigration-related offenses and proposes some solutions to ensure that immigrants' rights are protected in criminal immigration enforcement.
Friday, April 11, 2014
Patrick McGreevy of the Los Angeles Times reports that UC President Janet Napolitano and Sacramento State President Alexander Gonzalez said their university systems support legislation creating a loan program to assist undocumented students.
California grants undocumented students access to state scholarships and the in-state residence rate. However, those students are not eligible for federal student loans so there is a gap in their financial aid of up to $6,000 annually for those attending the University of California campuses and $3,000 for students at California State University schools.
Immigration Article of the Day: Holding the Line: U.S. Custom and Border Protection’s Expansion of the Border Search Exception and the Ensuing Destruction of Interior Fourth Amendment Rights by Hannah Robbins
Holding the Line: U.S. Custom and Border Protection’s Expansion of the Border Search Exception and the Ensuing Destruction of Interior Fourth Amendment Rights by Hannah Robbins Cardozo Law Review; Benjamin N. Cardozo School of Law February 10, 2014 Cardozo Law Review, Forthcoming
Abstract: While the Fourth Amendment governs every search conducted by government agents within the United States, the Supreme Court has sanctioned diminished Fourth Amendment protections at the border by holding warrantless and suspicionless routine border searches constitutional due to the “special need” of the government to protect its people. However, in permitting this “Border Search Exception” to the Fourth Amendment, the Supreme Court has done so with a conception of the border in mind that does not bear resemblance to the “100-mile buffer zone” described in CBP’s regulations, and under which CBP now rests its authority for its push into the interior. Rather, in sanctioning reduced Fourth Amendment protections at the border, the Court employed a narrow, common understanding of what the country’s border means — the barrier zone between the United States and its international neighbors. This Note argues that the reduced Fourth Amendment protections at the physical border, sanctioned by the Supreme Court under the Border Search Exception doctrine, do not authorize CBP’s post-September 11 extension of suspicionless searches into the interior, to the outermost limits of the agency’s jurisdictional authority under INA § 287(a)(3) and CFR § 287.1(a)(2). In other words, CBP has usurped the investigative tools provided it for border protection work to achieve internal immigration enforcement under the guise of terrorism prevention. This expansion of diminished Fourth Amendment protections has resulted in constitutional violations that must be reigned in by the Supreme Court, if it is given the opportunity to do so, or by DHS itself, by amending 8 CFR § 287.1(a)(2) to reflect CBP’s limited authority away from the border. Part I of this Note provides an overview of Supreme Court jurisprudence regarding Fourth Amendment protections at the border, and of the statutory and regulatory sections that govern CBP’s authority away from border. Part II discusses CBP’s push into the interior of the country after September 11 to perform internal immigration checks — a job that belongs to CBP’s sister agency, Immigration and Customs Enforcement (ICE). Part III argues that the “100-mile border zone” promoted in CBP’s regulations under 8 CFR § 287.1(a)(2) has enabled CBP to assert authority to perform interior suspicionless searches, and that such action is in direct conflict with the limitations of the Border Search Exception. Part III also suggests a regulatory and internal agency fix to this Fourth Amendment problem.
Thursday, April 10, 2014
USA Today reported that an aunt of President Obama whose undocumented status grabbed national headlines before the president's 2008 election, has died. Attorney Margaret Wong, who represented the president's aunt in her immigration case, said Zeituni Onyango died Tuesday in a Boston rehabilitation center. Onyango, 61, who was the half sister of the president's father, was being treated for cancer and respiratory problems. She moved to the U.S. from Kenya in 2000 and was denied asylum by an immigration judge in 2004. But Onyango remained in the country illegally, living in Boston public housing until granted asylum in 2010.