Thursday, June 22, 2017
Immigration Article of the Day: Elusive Justice: Legal Redress for Killings by U.S. Border Agents by Roxanna Altholz
Elusive Justice: Legal Redress for Killings by U.S. Border Agents byRoxanna Altholz, Uiversity of California, Berkeley, School of Law
Since the 1990s, U.S. Customs and Border Protection (CBP) agents have killed approximately fifty Mexican and U.S. nationals along the U.S.-Mexico border. Many of the victims, including several teenagers, were unarmed and shot in the back. The vast majority of CBP agents have faced no criminal, civil, or disciplinary action for their conduct. This Article identifies U.S. legal doctrines, defenses, and procedures that make justice elusive for the relatives of victims. The Article argues that there is mounting legal and political pressure to hold CBP agents accountable for violence at the border and suggests that reformists look to international standards to help guide efforts to address systemic barriers to redress.
To date, no civil plaintiff has prevailed at trial in a case involving a CBP killing. Courts have dismissed most federal civil claims for lack of jurisdiction or after finding the U.S. government or CBP agent has immunity. Federal legislation, specifically the Westfall Act, effectively bars state-law tort claims in this context. As for criminal charges, federal prosecutors have declined to bring charges in all cases but one and the few state prosecutions have rarely resulted in a guilty verdict.
There is, however, mounting legal and political pressure to hold CBP agents accountable for border killings. In 2017, the U.S. Supreme Court is expected to decide whether the U.S. Constitution protects foreign nationals killed in foreign territory by CBP agents. The U.S. Department of Justice recently brought criminal charges against a CBP agent for a border killing for the first time in the CBP’s nearly 100-year history. The Mexican government is also investigating multiple deaths and issued an arrest warrant for a CBP agent who killed an unarmed Mexican teenager. In addition, international human rights bodies have denounced the United States for use of excessive force and the failure to track or adequately investigate border deaths.
This Article discusses doctrines and defenses such as sovereign and qualified immunity, extraterritoriality, and the Westfall Act that have led to the dismissal of civil suits and the closing of criminal investigations without pursuing charges. But legal doctrines do not alone explain the lack of accountability—institutional policies and practices also play a critical role. This Article argues that international human rights standards reveal how far U.S. law enforcement has strayed from global standards in preventing the excessive use of force and serves as a guide to identify and address the systemic barriers to redress faced by victims’ families.
Wednesday, June 21, 2017
José A. Iglesias email@example.com
The Miami Herald reports on the development by the Trump administration of a new-and-improved express deportation system.
Until recently, foreign nationals convicted of a crime in federal court were told that immigration authorities would put them in deportation proceedings upon completion of their prison terms. Under orders from Attorney General Jeff Sessions, a champion of hard-line immigration enforcement, federal prosecutors are asking district judges to issue what are known as “judicial orders of removal,” which ensure that a convicted foreign national will be deported on completion of the sentence instead of being sent to an immigrant detention center to await proceedings in immigration court and then a deportation order from an immigration judge.
The new legal tactic shortens the wait time for deportation, bypasses backlogs in immigration court, saves the federal government money in housing and food in immigrant detention centers, frees up space in those centers for other detained foreign nationals and sends a message to immigrant communities that under President Donald Trump immigration enforcement is real.
Yesterday, on World Refugee Day 2017, the Center for Migration Studies (CMS) and Cristosal (El Salvador) released a report entitled, Point of No Return: The Fear and Criminalization of Central American Refugees. The report is available at http://cmsny.org/publications/cms-cristosal-report.
The report details ten cases from the Northern Triangle of Central America—four from El Salvador and three each from Guatemala and from Honduras—which chronicle the journeys of refugees in search of protection, how the system did not protect them, and what they face upon return to their home countries. The report concludes that the United States and Mexico are returning Central American asylum-seekers to danger, and, as a result, are violating the international principle of non-refoulement. Overall, 18 cases were interviewed and analyzed for the study.
Jeanne Rikkers, Director of the Center for Research and Learning at Cristosal, which interviewed the refugees, stated that those returned to their home countries remain living in fear and are restricted from attending school or obtaining employment. The majority are in hiding, restricted in their movements and liberty. Some have had family members killed in their place.
“The denial of due process to these refugees and their return by US and Mexican authorities have forced them into hiding, where they are unable to live normal lives,” Rikkers said. “They remain in danger and could still become victims of organized crime. It amounts to refoulement, which is a violation of international law.”
Donald Kerwin, CMS's executive director, stated that family networks, both in Central America and in the United States and Mexico, have replaced governments as a source of protection for many refugees.
“The sad truth is that family networks have filled the protection void that sending, transit and receiving countries have created,” Kerwin said. “Tragically, family members are not always in a position to protect their loved ones and they themselves can become targets of organized crime in the absence of targeted family members.”
Kevin Appleby, CMS's Senior Director of International Migration Policy, called upon the governments, who recently concluded a conference in Miami to address security and economic issues in the region, to replace deterrence with protection policies.
“For the past several years, the US and Mexico have done everything possible to deter refugees from fleeing violence in the Northern Triangle, to no avail and to the detriment of their rights,” Appleby said. All the nations in the region, including the US, must cooperate to ensure that these vulnerable families and children are protected, until the root causes of their flight can be adequately addressed.” The report includes several policy recommendations for the governments to consider.
For more information on the report or to set up interviews with one of the report’s authors, please contact Rachel Reyes, CMS’ Director of Communications, at (212) 337-3080 x 7012 or firstname.lastname@example.org.
Credit U.S. Navy, via Associated Press
David Phillips of the New York Times reports that "the seven sailors who died when the destroyer Fitzgerald collided with a container ship last weekend were a snapshot of the nation they served: an immigrant from the Philippines whose father served in the Navy before him; a poor teenager whose Guatemalan family came north eager for opportunity; a native of Vietnam hoping to help his family; a firefighter’s son from a rural crossroads in the rolling green fields of Virginia. The roll call of the dead also illustrated the degree to which the military relies on recruits from immigrant communities around the country."
One World Play Project today launched the Play Together campaign to bring the power of play to refugee youth through donations of One World Futbols. Inspired by refugee children in Darfur, the One World Futbol is an ultra-durable soccer ball that never needs a pump and never goes flat, making it ideal for the rough environments where many refugees live and play. The Play Together campaign kicks off on World Refugee Day and will run through the end of 2017, raising ball donations for refugee youth from around the world who have fled their homes due to war, conflict and other threats. [Watch the campaign video.]
According to statistics from the United Nations High Commission on Refugees (UNHCR), of the nearly 21.3 million refugees worldwide living in exile, more than half are under the age of 18. This number does not include another 44 million men, women, and children displaced inside their own countries. The UN Refugee Agency estimates that refugees are uprooted from their lives for an average of 17 years.
Research shows that play helps individuals recover from trauma and cope with challenging situations while encouraging physical, psychological and social health. Play has the power to bring individuals together—no matter what their country, culture, age or religion. It gives refugee children an opportunity to make friends and build connections not just with other refugees but also with youth from their new communities.
Through One World Play Project’s Play Together campaign, individuals can bring the power of play to refugee youth around the world by simply giving balls to our partner organizations. Go to oneworldplayproject.com/play-together to:
Give Balls: Give an ultra-durable One World Futbol for $25 USD directly to Play Together partner organizations
Buy One, Give One: Get a One World Futbol for $39.50 or $44.50 USD, and One World Play Project will give a second ball to our partners.
The US Federal Judicial Center recently published International Human Rights Litigation: A Guide for Judges. This Guide was written to assist federal judges in managing and resolving federal cases involving international human rights claims, and it provides a comprehensive analysis of all substantive and procedural issues involved. A detailed analysis is provided on the Alien Tort Statute, Torture Victim Protection Act, and other federal statutes. The book also includes a model scheduling order for human rights cases as well as case summaries, tables, and research references, current as of Dec 31, 2016.
The Guide was drafted to be neutral as between human rights plaintiffs and defendants, and thus should provide useful information for all. Because it was commissioned by a federal government agency (the FJC) for the benefit of federal judges, lawyers, and agencies, the Guide has been placed in the public domain and is available as a free resource. Readers can freely distribute, print, and otherwise use and transmit the Guide in its present form, provided that no changes are made to the manuscript itself.
You download the Guide by clicking the links above or via this link to the author’s SSRN site.
Immigration Article of the Day: “Not a One-Person Show”: Trump as Administrator-in-Chief of the Immigration Bureaucracy by Ming H. Chen
“Not a One-Person Show”: Trump as Administrator-in-Chief of the Immigration Bureaucracy by Ming H. Chen, Notice & Comment (Yale Journal on Regulation) (2017)
Recent events paint a portrait of what President Trump is like as a boss. It is not flattering. The Ninth Circuit’s pronouncement that “Immigration, even for the President, is not a one-person show” in its latest rejection of the travel ban reveals his autocratic style. President Trump’s contradictory defenses of the travel ban while litigation proceeds shows his disregard for law and agency expertise. This style of leading the executive branch raises legal as well as prudential concerns.
In Administrator-In-Chief, 69 Admin. L. Rev. 347 (2017), I set forth a framework for understanding the role of the president as chief administrator for the executive branch. The article drew upon Obama Administration executive actions pertaining to immigration: USCIS’ implementation of deferred action as agenda-setting in immigration enforcement, ICE’s prioritization of serious criminal offenses in the issuance of immigration detainers as rationalized agency discretion, and the DOJ’s use of priority docketing in immigration courts to deter Central American asylum-seekers as a failure of coordination with DHS. Drawing on interviews with DHS officials and other policymakers, the article argued that shoring up procedural legitimacy strengthens the President’s basis for intervening in administrative policy.
Tuesday, June 20, 2017
George Joseph over at Slate has created an interesting set of maps to show "how sanctuary cities are winning against federal authorities."
You may also find interesting these quotes from ICE’s Acting Director Thomas Homan about how sanctuary policies affect ICE enforcement efforts:
“To arrest people at-large rather than in the county jail, it takes longer, it takes more resources, it's less efficient.... If people get released, now there’s several people out in the general public, we may not know where they are. So it is gonna take a team of officers to locate that person and do a lot of investigative research on where we can find them.”
Big Business Wants Sensible Immigration Policy: Apple CEO Tim Cook urges Trump to show more compassion on immigration
Cook has vocally spoken out about the economic value and merits immigrants add to the American economy, contrasting largely with Trump and some of his senior adviser’s views that immigrants are stealing jobs from Americans and hurting the U.S. economy.
President Trump reportedly told Cook that he supported comprehensive immigration reform.
Immigration Article of the Day: Irreconcilable Similarities: The Inconsistent Analysis of 212(C) and 212(H) Waivers by Kate Aschenbrenner Rodriguez
Oklahoma Law Review (2017)
This article examines the inconsistent, sometimes incoherent, and often irrational intersection of constitutional, administrative, and immigration law in the context of waivers of inadmissibility under the former section 212(c) of the Immigration and Nationality Act (INA) and under the current INA section 212(h), waivers frequently used to waive criminal convictions for long-term lawful permanent residents (LPR) so that such LPRs do not lose their status and may remain legally in the United States.
Each of these waivers has been the subject of extensive litigation seeking to extend their reach. Three major legal frameworks have been involved in these decisions: (1) judicial deference to an agency’s interpretation of a statute it is charged with administering under the Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.; (2) arbitrary and capricious review of an agency’s action under section 706(2)(A) of the Administrative Procedure Act (APA); and (3) the guarantee of equal protection of the law under the due process clause of the Fifth Amendment to the Constitution. Not only have courts differed on how to interpret and apply particular portions of the legal standards, they have also varied widely as to whether they invoke any of these particular legal standards at all. The article unpacks the complex and often misunderstood decisions on the expansion of these waivers and highlights the significant parallels between the administrative, constitutional and immigration frameworks used. The courts have failed to recognize these parallels and, at a more fundamental level, have failed to engage in a deep analysis of any of the three legal frameworks invoked. I argue that these failures are a remnant of the plenary power doctrine and the theory of immigration exceptionalism. As courts begin to remedy these failures, the next step in the erosion of the plenary power doctrine and immigration exceptionalism will take place.
The American Bar Association House of Delegates at this year’s ABA Annual Meeting in August will consider a resolution that supports guaranteed counsel for immigrants in removal proceedings. Here is the text of the resolution:
RESOLVED, That the American Bar Association supports the appointment of counsel at federal government expense to represent all indigent persons in removal proceedings before the Executive Office for Immigration Review (in Immigration Courts and before the Board of Immigration Appeals), and if necessary to advise such individuals of their rights to appeal to the federal Circuit Courts of Appeals.
FURTHER RESOLVED, That unless and until the federal government provides counsel for all indigent persons in removal proceedings before the Executive Office for Immigration Review, the American Bar Association encourages state, local, territorial, and tribal governments to provide in removal proceedings legal counsel to all indigent persons in their jurisdictions who lack the financial means to hire private counsel and who lack pro bono counsel.
FURTHER RESOLVED, That the American Bar Association encourages federal, state, local, territorial, and tribal governments to prioritize government-funded counsel for detained individuals in removal proceedings.
For the report in support of the resolution, see Download Aba report
World Refugee Day is observed every year by the people on June 20 in order to raise the public awareness about refugee’s situations throughout the world. Celebrating World Refugee Day annually on June 20 was declared by the United Nations General Assembly in December 2000.
The World Refugee Day celebration of 2001 marked as the 50th anniversary of 1951 Convention Refugees status by the United Nations General Assembly.
Monday, June 19, 2017
As the Tribune reports, those who support local police working with immigration and those who oppose such cooperation are sharply divided by political party and race:
Where 85 percent of Republicans support that requirement, only 27 percent of Democrats do. White and black voters support it, though by dramatically different margins — 67 percent supportive to 26 percent opposed among whites, and 47 percent to 37 percent among blacks. Among Hispanic voters, 39 percent support required cooperation, and 48 percent oppose it. More opponents and supports felt "strongly" about their positions than not.
In terms of local police checking immigration status:
Three-quarters of Democrats oppose that provision, while 86 percent of Republicans support it. Most Hispanic voters (59 percent) and black voters (57 percent) oppose the provision. Most white voters (64 percent) support it.
Back in 2014, the University of California system did something extraordinary: It established a legal services center to meet the immigration-related needs of its students.
The UC Immigrant Legal Services Center is based at the UC Davis School of Law. It serves students throughout the system of UC schools.
Today, the L.A. Times reports, demand for the center's services are in high demand. Students who are unsure what to make of the president's stance on DACA, which seems to be in flux, can get advice and counsel. The center has been a "lifeline" for students during this time.
And the center doesn't just advise individual students - it holds know your rights workshops and briefs UC administrators about immigration issues. The center even shares materials with other educational institutions around the country.
Amazing work by a cutting-edge organization.
The Supreme Court Term ends this month. Expect a flurry of decisions in the next two weeks. In the decisions released today, the Court did not decide any of the immigration cases before it, including Sessions v. Dimaya (void for vagueness challenge to a criminal removal provision) or Jennings v. Rodriguez (immigrant detention). However, it did decide a challenge to detention after September 11, 2001 (Ziglar v. Abassi) and decided in a 4-2 split (Justices Kagan and Sotomayor recusing; Justice Gorsuch not participating) that a Second Circuit ruling allowing a damages action to proceed could not stand. Here is the opinion. Justice Kennedy wrote for the majority, Justice Breyer for the dissent. Amy Howe analyzes the decision for SCOTUSBlog here.
Here is a description of the issues in Ziglar v. Abassi:
"This case first asks the Supreme Court to determine whether non-citizens’ claims against government officials who arrested them in connection with the September 11, 2001 attacks and subjected them to harsh conditions during their detention arose in a “new context” under Bivens. Second, it asks whether the government officials were erroneously denied qualified immunity, which would preclude the government officials’ liability for their involvement in the non-citizens’ arrest and detention. Third, this case asks whether the pleading requirements of Ashcroft v. Iqbal are satisfied where the pleading relies on hypothetical scenarios and assumed discriminatory intent. James W. Ziglar, the petitioner, argues that a Bivens remedy is not applicable in this case because Bivens applies to individual government officials’ behavior, not policy concerns such as national security and immigration. Ziglar also argues that the government officials’ actions were reasonable within the context, given the national security concerns, and that the government officials should, therefore, be precluded from liability for their actions. Lastly, Ziglar argues that the respondent Ahmer Iqbal Abbasi failed to demonstrate sufficient evidence to support his claim against the government officials. Meanwhile, Abbasi argues that harsh treatment in federal detention is not a new context under Bivens, that government officials are aware that the Equal Protection Clause categorically prohibits race-based government action, and that Abbasi’s claim satisfied Iqbal’s facial plausibility standard. The Supreme Court’s decision in this case will impact the balance between government officials’ qualified immunity and detained non-citizens’ constitutional rights."
Read this interesting, if not upbeat, story from the New York Times, about a political controversy in a Ohio agricultural community (Willard, Ohio) over whether to have a "welcome back" party for migrant workers who annually come back to work in the "muck," fertile soil for vegetables.
In creased immigration enforcement has made farm labor scarce. “Without the Hispanic labor force, we wouldn’t be able to grow crops,” said Ben Wiers, a great-grandson of the pioneer Henry Wiers, who bought five acres here in 1896, noting that he considers many workers at Wiers Farms, which cultivates more than 1,000 acres of produce under the Dutch Maid label, to be friends.
Sunday, June 18, 2017
Bret Stephens of the New York Times has an op/ed that is getting a fair amount of play in immigration circles in a time of Trump. He begins:
"In the matter of immigration, mark this conservative columnist down as strongly pro-deportation. The United States has too many people who don’t work hard, don’t believe in God, don’t contribute much to society and don’t appreciate the greatness of the American system.
They need to return whence they came.
I speak of Americans whose families have been in this country for a few generations. Complacent, entitled and often shockingly ignorant on basic points of American law and history, they are the stagnant pool in which our national prospects risk drowning."
You get the drift.
Saturday, June 17, 2017
The end of the week saw a flurry of news stories about President Trump's efforts to tighten up on President Obama's efforts to reopen ordinary relations with Cuba. Here is the President's June 16, 2017 memo on "National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba." The Washington Post summarizes the changes here: "President Trump, denouncing what he called his predecessor’s `terrible and misguided' opening to Cuba, outlined a new policy Friday that seeks to curb commercial dealings with the government in Havana and to limit the newfound freedom of U.S. citizens to travel to the island."