Thursday, April 10, 2014
Immigration Article of the Day: Why the Rule-of-Law Dictates that the Exclusionary Rule Should Apply in Full Force in Immigration Proceedings by Lindsay Adkin
Why the Rule-of-Law Dictates that the Exclusionary Rule Should Apply in Full Force in Immigration Proceedings by Lindsay Adkin Independent February 10, 2014 University of Miami Law Review, Forthcoming
Abstract: This article discusses how and why the exclusionary rule should apply in the immigration context. The first part of the Article sets out the history of the exclusionary rule in immigration proceedings, starting prior to the Lopez-Mendoza decision, moving to the decision itself, and then discussing how the lower courts have interpreted it. Next, the article examines how the cost-benefit analysis that the Supreme Court used in Lopez-Mendoza to determine that the exclusionary rule need not apply in removal hearings would come out much differently if the Court weighed those same factors today. The article then considers how the increased involvement of state and local law enforcement in the enforcement of immigration law has brought about even more changes to the immigration law landscape. The article concludes with the argument that the cost-benefit analysis should be abandoned when trying to determine whether the exclusionary rule should apply in immigration proceedings, and instead, the exclusionary rule should apply in full force in immigration proceedings based on the application of the rule-of-law principles that the exclusionary rule was originally designed to protect.
A new blog by clinic students at Penn State Law is designed to help practitioners stay up-to-date on the latest immigration decisions of the U.S. Court of Appeals for the Third Circuit. A collaboration between the Penn State Center for Immigrants’ Rights and the Pennsylvania Immigration Resource Center (PIRC), the blog covers precedential and select non-precedential Third Circuit decisions.
Wednesday, April 9, 2014
My colleague Joel Dobris tipped me off to a reference in the Financial Times to a very interesting study of immigrant assimilation. In The Economic Payoff of Name Americanization, Costanza Biavaschi (IZA Corrado Giulietti Institute for the Study of Labor (IZA)) and Zahra Siddique (University of Reading; Institute for the Study of Labor (IZA) examine the impact of the Americanization of names on the labor market outcomes of migrants. The study finds that migrants who Americanized their names experienced larger occupational upgrading. Some, such as those who changed to very popular American names like John or William, obtained gains in occupation-based earnings of at least 14%. The authors conclude that the tradeoff between individual identity and labor market success was present since the early making of modern America.
This parody is brought to you by the fine people at Reason TV. But don't you wish law enforcement stops really went down like this one? "
Here is a handy infographic listing all the rights you have when law enforcement officers stop you.
In this insightful article (Immigrant Labor, Immigrant Rights, David Bacon compares modern immigration reform proposals to the Immigration Reform Act of 1986 and opines that social movements, not political posturing, will result in laws and enforcement that are true to immigrant labor rights.
The SCOTUSBlog "Petition of the Day" iwas the one filed in Arizona v. Valle del Sol, Inc. 13-806.
In an opinion by Judge Paez, joined by Judge Noonan and a partial dissent by Judge Bea, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's grant of a preliminary injunction in an action challenging Arizona Revised Statutes § 13-2929 , which attempts to criminalize the harboring and transporting of unauthorized immigrants within the state of Arizona.
The panel first held that an individual plaintiff, pastor Luz Santiago, and the organizational plaintiffs had standing to challenge Ariz. Rev. Stat. § 13-2929 . The panel determined that Santiago had established a credible threat of prosecution and that the organizational plaintiffs had shown that their missions had been frustrated and their resources diverted as a result of § 13-2929 . The panel held that the statute as written was void for vagueness under the Due Process Clause because one of its key elements-being "in violation of a criminal offense"-was unintelligible.
The panel further held that the provision which attempted to criminalize the harboring and transporting of unauthorized immigrants, however it was interpreted, was preempted by federal law and thus invalid under the Supremacy Clause. The panel concluded that the district court did not abuse its discretion in holding that plaintiffs established the elements necessary to grant a preliminary injunction.
Concurring in part and dissenting in part, Judge Bea stated that he concurred with the majority regarding standing and the void for vagueness doctrine, as well as its holding that the district court did not abuse its discretion in holding that plaintiffs established the elements necessary to grant a preliminary injunction. Judge Bea dissented from Part III of the majority opinion, stating that because this case was resolved on other grounds, namely vagueness, the court should not have reached the preemption issue.
Issues Before the Supreme Court:
(1) Whether respondents have Article III standing and have established the requisite imminent risk of irreparable harm to obtain an injunction of Ariz. Rev. Stat. § 13-2929, which makes it unlawful for a person to knowingly “(1) transport or move or attempt to transport or move the alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield the alien from detection in Arizona; or (3) encourage or induce the alien to come to or live in Arizona;”
(2) if respondents have standing, then whether Ariz. Rev. Stat. § 13-2929 is void for vagueness even though its meaning is commonly understood; and
(3) whether the Court of Appeals erred in finding that states are precluded from enacting any law that restricts a person from furthering or exploiting another’s unlawful presence in the United States.
The Arizona law at issue in this case is just one of many efforts, including S.B. 1070 that was struck down in large part in Arizona v. United States, by the Arizona legislature in attempting to take a tough immigration enforcement stand.
Prediction: Cert Denied. Since deciding Arizona v. United States, the Court has denied cert in a number of cases raising similar issues, including those involving controversial Hazleton, Pennsylvania and Farmers Branch, Texas laws. I expect similar treatment in this case.
Read and listen to this AP/KQED story about how the California Trust Act, which went into effect on January 1, 2014, already has had positive impacts in dramatically reducing the numbers of low level criminal offenders turned over to federal immigration authorities. The result will be a reduction of the number of low level criminal offendeds removed from the United States as a result of the Secure Communities program. Will other states follow California's lead?
From the Bookshelves: Becoming American Why Immigration Is Good for Our Nation's Future by Fariborz Ghadar
Becoming American Why Immigration Is Good for Our Nation's Future by Fariborz Ghadar
For policy makers, business leaders, and American citizens, immigration reform is one of the defining issues of our time. In turns both personal and analytical, remaining factual and well-argued throughout, Fariborz Ghadar’s Becoming American makes the case for common sense immigration policies and practices that will not only help strengthen America’s economy and role as world leader, but will also help millions of prospective immigrants and their families start making more out of their lives today, and for generations to come. The author is an Iranian immigrant who fled his homeland decades ago in search of a more stable and successful future. Weaving his personal story into that of the millions of immigrants facing unnecessary hurdles at the global level, he demonstrates the need for our governments and leaders to make policy decisions intelligently – not just based on current circumstances – but with an eye toward a future brighter than our current state of dysfunction, uncertainty, and regrettable bigotry towards those with funny names. Based on our nation’s undeniable history as a nation of immigrants, we cannot fail to address the impact that immigration will have on our future if we want to accurately plan for a thriving, diverse and better tomorrow. Becoming American understand helps readers not only the mindset of America’s immigrant populations, but makes the case for America once more as a place for the world’s hardest workers, loftiest dreamers, and most prosperous people.
Fariborz Ghadar is the founding director of The Center for Global Business Studies at Penn State University, and a Distinguished Scholar and Senior Adviser at the Center for Strategic & International Studies.
Immigration Article of the Day: Observations on History, Law, and the Rise of the New Jim Crow in State-Level Immigration Law and Policy for Latinos by Tom Romero II
Observations on History, Law, and the Rise of the New Jim Crow in State-Level Immigration Law and Policy for Latinos by Tom Romero II, University of Denver Sturm College of Law April 7, 2014 Volume 66 of the American Quarterly (March 2014), pages 153-160 U Denver Legal Studies Research Paper No. 14-17
Abstract: This essay works to connect the history of local enforcement of immigration law and policy against Mexican migrants and Mexican American citizens and its relationship to the creation and perpetuation of what Michelle Alexander has described as a redesigned caste system in the United States. As state and local government authorities then and now sought to define and respond to a “Mexican menace” as the failed enforcement of federal immigration law, such law and policy challenged not only Congress’s seemingly settled plenary power to determine who had license and permission to be in the United States but also who had the authority to define and extend the benefits of citizenship and full participation in American culture and life. In tandem with federal law, the essay identifies how local ordinances and state statutes created legal and social conditions remarkably similar to the Jim Crow ordinances and state statutes that perpetuated and justified racial discrimination and unequal treatment against African Americans in the years and decades after the Civil War. A local or state government’s attempt to police and deport the “illegal alien” with the use of its county sheriffs, the state patrol, or its national guard highlighted the problematic extent that local and state governments exercised in most disciplinary powers of sovereignty (policing) against Latinos, subject to the most minimal standards of judicial review (immigration law). In the end, the essay highlights the domestic consequences of the United States’ imperial project in the ways that laws and policies designed to preserve a nation’s borders in turn have played a fundamental and pernicious role on the creation and maintenance of a racialized system of social control in the modern multiracial United States. Click Beyond the Page for related web-content.
Click here for other essays in the issue, all dealing legal inequalities and the American empire.
Romero's fuller treatment of Depression-era state efforts at immigration enforcement in Colorado will appear as a chapter in the soon to be released: Strange Neighbors: The Role of States in Immigration Policy Edited By Carissa Byrne Hessick and Gabriel J. Chin.
Tuesday, April 8, 2014
Secure Communities, a massive government surveillance program launched in 2008 by Immigration and Customs Enforcement (ICE), has failed to increase the removal of its primary announced targets: noncitizens who have committed crimes other than minor violations. According to a new examination of detailed agency records by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, the number of such individuals deported by ICE has actually declined over the last four years.
TRAC's analysis was based on ICE records of 2.3 million deportations, obtained as a result of scores of requests for case-by-case records under the Freedom of Information Act. Covering the period from FY 2008 - FY 2013, the report presents a detailed portrait of the changing nature of criminal offenses represented in these ICE deportations.
Secure Communities is an ambitious national program under which millions of fingerprints gathered by local law enforcement agencies are automatically transmitted to ICE via the FBI so that the immigration agency can then issue "detainers" requesting that local authorities hold selected individuals for possible later deportation. TRAC's analysis shows that in FY 2013 only 12 percent of all deportees had been found to have committed a serious crime. And for fully half of those convicted, the most serious charge was only an immigration or traffic violation.
For full details, including counts for specific criminal offenses, see the report here.
Abstract: The issue of targeted government killing of U.S. citizens within the national territory garnered an intense burst of attention earlier this year when Senator Rand Paul staged a memorable thirteen-hour filibuster during the John Brennan confirmation hearings. The prospect that the government might “kill Americans on American soil” resonated; in fact, it became a raging meme and a source of political panic that galvanized both right and left. Using this Rand Paul filibuster episode as a launching point, my comments address the structure of prevailing normative and legal thought on the subject of status, location, and perceived ethical standing. I conclude that presence in the territory still matters for citizens and citizenship more than conventional accounts tend to recognize.
Monday, April 7, 2014
HOUSE MINORITY LEADER NANCY PELOSI AND OTHER MEMBERS OF CONGRESS VISIT WOMEN FASTING FOR IMMIGRATION REFORM AT NATIONAL MALL
Women from across the country have converged in DC to fast to push lawmakers to act on immigration reform and stop deportations [Washington, DC]
House Minority Leader Nancy Pelosi (D-CA), and ten other members of the House of Representatives will visit the fasting women at the “Courage Café” on April 8th around 2pm at the National Mall at 4th Avenue, near the Air and Space Museum, in DC. Following a press conference and procession to the Capitol on Monday that launched a 48-hour fast for immigration reform, Pelosi and 10 other members of Congress — including Grace Meng (D-NY), Zoe Lofgren (D-CA), Grace Napolitano (D-CA), Lucille Roybal Allard (D-CA), Judy Chu (D-CA), Linda Sanchez (D-CA), Suzan DelBene (D-WA), Grace Meng (D-NY), Raul Grijalva (D–AZ), and Michelle Lujan Grisham (D–NM) — will visit the fasting women.
The women are spending the 48 hours sacrificing food but serving up courage through “courage conversations” and filling up a “Courage Basket” with messages from fasters and supporters around the country to encourage elected leaders to act, which they’ll deliver to the Capitol after breaking the fast on April 9th. In addition to visits from legislators, supporters nationwide, including actress Rosario Dawson, will be fasting remotely, and others will be emailing messages of courage to add to the ”Courage Basket.”
DATE: Tuesday, April 8th 48-hour fast: Monday, April 7 – Wednesday, April 9
TIME: 2pm - 3pm
WHERE: Courage Café tent On the National Mall at 4th Avenue, close to the Air and Space Museum
One Immigration Legacy of the Obama Administration: Deportations of Hundreds of Thousands a Year of Small Time or Non-Criminal Offenders, Racial Profiling
There has been considerable discussion in recent days about the Obama administration’s immigration record, particularly its much-publicized removal records. An article last week in the Los Angeles Times quibbled with the statistical tabulation of the number of removals and questioned whether the numbers were as high as touted by the administration. Critizing from a different angle, the New York Times reported that roughly two-thirds of the roughly two million noncitizens removed from the country by the Obama administration had been arrested for relatively minor crimes, such as driving without a license, or no crimes at all.
Whether the count is precisely what the administration says it is or not, it is apparent that hundreds of thousands of people are being deported each year, and that the numbers have increased dramatically over the last twenty years. Frustrated with the failure of Congress to enact immigration reform and seeing the impacts of mass removals on families and communities, immigrant rights advocates have begun to let their voices be heard, with the nation seeing protests of the deportations across the country on Saturday.
It is clear that the Obama administration’s immigration legacy will likely be a mixed one, remembered for the mass removals of immigrants as well as for innivative programs like the Deferred Action for Childhood Arrivals program.
Some things are clear when it comes to immigration enforcement by the Obama administration.
The Obama administration has expanded the use of the criminal justice system in immigration enforcement and has aggressively removed "criminal aliens."
Over the last several decades, Congress has passed a series of tough immigration enforcement laws that build on the restrictions on immigration in the Immigration Act of 1965. These laws, among other things, greatly expanded the grounds for removal – and mandatory removal – for many criminal activities, narrowed the available forms of relief from removal, dramatically increased the use of mandatory detention and the criminal law as immigration enforcement tools, and significantly restricted judicial review of removal and related decisions by the Executive Branch. During roughly the same time period, Congress, with the support of the President, has appropriated record amounts of monies to border enforcement, which has allowed for the progressively greater militarization of the U.S./Mexico border with additional, and much enhanced, technology, extension of the border fence, and ever-increasing numbers of enforcement personnel on the ground.
Since 1996, Congress has periodically considered comprehensive immigration reform proposals that, among other things, would expand in certain limited respects the avenues for legal immigration, including the possible creation of a new guest worker program, create a path to legalization (and possible eligibility for U.S. citizenship) for undocumented immigrants, and provide for increased enforcement. Although proposals have resurfaced time and again with great political fanfare in the last decade, Congress has repeatedly found itself unable to cobble together a coalition supporting a major piece of immigration reform legislation that garners sufficient bipartisan support for enactment. Partisan tempers flare regularly and Latina/o advocacy groups have expressed deep frustration with the failure of Congress to pass a reform bill. Congress appears to be at but the latest stalemate in the efforts to pass immigration reform.
As part of a concerted political push to demonstrate its commitment to enforcement and to convince Congress to enact comprehensive immigration reform, the Executive Branch beginning in the 1990s has pursued aggressive enforcement measures that have resulted in a series of records for the number of noncitizens removed from the United States. Significantly heightened and inflexible enforcement of the immigration laws by the administrations of both Democratic and Republican Presidents, rather than any equally large recent increase in undocumented immigration, has resulted in the record numbers of removals. Political priorities have changed dramatically as public concern with immigration – especially from Mexico – progressively increased in the years since Congress passed the Immigration Act of 1965. In essence, removals in 2015 are a high political priority for the Executive Branch in a way that they unquestionably were not in 1965, 1976, or, for that matter, 1990.
Building on the increasingly tough enforcement measures passed by Congress, “Secure Communities,” the signature immigration enforcement program of the Obama administration, has contributed significantly to the removal records. The program requires state and local law enforcement agencies to share information with federal immigration enforcement authorities about immigrants who are arrested and to detain noncitizens possibly subject to removal until federal immigration authorities can take them into custody.
After the initial implementation of Secure Communities, the Obama administration generated considerable controversy when it announced that state and local participation in the program was mandatory, not voluntary. State and local law enforcement agencies therefore cannot refuse to cooperate with U.S. immigration authorities in sharing information about noncitizens who are arrested and placing “immigration holds” (i.e., detaining noncitizens for the U.S. government for possible immigration violations) on them.
By mandating cooperation between state, local, and federal governments in immigration enforcement, Secure Communities deviates from the historically rigid separation of state and local criminal law enforcement from federal immigration enforcement. That separation had been justified on the entirely reasonable policy consideration, which continues to be embraced by a number of law enforcement professionals, including local police chiefs, that immigrant communities are significantly less likely to willingly cooperate with state and local police agencies in ordinary criminal law enforcement activities if those agencies are considered by noncitizens to be part of the nation’s immigration enforcement apparatus. Full cooperation with local law enforcement authorities would not appear to be likely, for example, if legal and undocumented immigrants fear that reporting a crime to local police might well result in their deportation from the United States because local police work closely with federal authorities in immigration enforcement.
In essence, "[t]he deportation of `criminal aliens' is now the driving force in American immigration enforcement. In recent years, the Congress, the Department of Justice, the Department of Homeland Security, and the White House have all placed criminals front and center in establishing immigration enforcement priorities. . . . In effect, federal immigration enforcement has become a criminal removal system." Ingrid V. Eagly, Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement, 88 NYU L. REV. 1126, 1128 (2013) (emphasis added) (footnotes omitted).
Consistent with that development, officials at the highest level of the Obama administration, including the President himself, regularly proclaim that Secure Communities targets dangerous “criminal aliens” and contend that the program is a necessary and essential measure to protect public safety.
Despite the administration’s public safety justification for its enforcement measures, many noncitizens charged with, but not necessarily convicted of, relatively minor criminal offenses – and thus who cannot reasonably be said to pose a serious risk to public safety – have been removed from the country due to the operation of the program. “Immigration and Customs Enforcement records show that a vast majority, 79 percent, of people deported under Secure Communities had no criminal records or had been picked up for low-level offenses, like traffic violations and juvenile mischief.” Editorial, Immigration Bait and Switch, N.Y. TIMES, Aug. 17, 2010, at A22 (emphasis added).
For example, until a public outcry convinced the U.S. government to decide not to seek her deportation, one undocumented Mexican immigrant who was dubbed the “tamale lady” faced possible removal from the United States based on her arrest for trespassing by local police in Sacramento, California; she had been arrested while selling home-made tamales in front of a Wal-Mart store. As required by Secure Communities, local police detained the noncitizen and turned her over to U.S. immigration authorities, which proceeded to threaten her with deportation. It strains credulity to believe that an undocumented tamale vendor trying to scratch out a living for herself and her U.S. citizen children truly represents a serious risk to the public safety and, based on that transgression alone, warrants removal from the country. A public outcry to the injustice of removal convinced the U.S. government to halt its efforts to deport the tamale lady.
Cases like those involving the tamale lady are more common than one might imagine due to the mandatory reporting (including for such crimes as driving an automobile without a valid driver’s license) required by Secure Communities. Their persistence demonstrates that, if public safety is in fact the true purpose of the program, the program casts an overbroad, over-inclusive net. One might suspect reasonably that the true regulatory goal above all others in the Obama administration’s immigration enforcement agenda is to consistently maximize removal numbers and set records, which in turn are much-publicized, celebrated, and relied upon as demonstrating the President’s commitment to immigration enforcement. In addition, the administration trumpets the removal records to claim that the border has been secured and argue that Congress now must move forward with comprehensive immigration reform.
Further demonstrating the hyperaggressive nature of the U.S. government’s immigration enforcement efforts, a Supreme Court known for its ideological conservatism has repeatedly rejected the government’s overzealous attempts to remove from the United States long-term lawful permanent residents with deep ties to the community for what can be reasonably characterized as minor criminal offenses.
In 2013, for example, the Court rejected the removal order of a long-term lawful permanent resident with U.S. citizen children based on a single criminal conviction hinging on possession of what amounted to two or three marijuana cigarettes. Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). Possession of a small amount of marijuana for personal use, which would currently be legal in several states, by a lawful permanent resident would not seem to pose a serious risk to the public safety, especially when combined with the fact that the offender was an established U.S. resident with no other criminal record. Even if possible removal might be appropriate for certain categories of drug offenders, mandatory removal of this noncitizen generally would not seem to be. The Obama immigration bureaucracy nonetheless pulled out the stops to exhaust all avenues to advocate for removal, including seeking review in the Supreme Court. This case like the tamale lady’s, is not an outlier. Put simply, the Executive Branch has consistently taken zealous litigation positions to defend its aggressive removal efforts, only to have a conservative Court, which one might expect to be sympathetic, regularly reject them.
To add to the concerns with the Secure Communities program, its operation unquestionably has racially disparate impacts. These impacts result in no small part from the fact that the operation of the criminal justice system in the United States itself historically has racially disparate impacts. Local police departments are frequently accused of profiling Latina/os, African Americans, and other racial minorities in law enforcement activities, including run-of-the-mill traffic stops. Profiling of Latina/os has long been a persistent problem in ordinary criminal law enforcement, just as it is in immigration enforcement. Stops for “driving while Black” and “driving while brown” are well-known phenomena in minority communities across the country.
When the federal removal machinery is triggered by state and local arrests (and not necessarily convictions) to trigger immigration enforcement action as Secure Communities does, one can reasonably expect immigrants of color – with the largest number of this group being from Mexico – to be adversely affected because of racially disparate effects of state and local law enforcement efforts. Racially disparate rates of arrests inexorably result in racially disparate removals of noncitizens handed over by state and local law enforcement authorities to U.S. immigration authorities. Consequently, through the operation of Secure Communities, many immigrants of color arrested by local police are ultimately placed by federal immigration authorities in removal proceedings and face possible deportation. As we shall see, the result is that Latina/o immigrants have been removed in record numbers in recent years from the United States.
Racial Profiling in Immigration Enforcement Perists
Even when exclusively in the hands of the U.S. government, immigration enforcement in the United States long has been challenged as discriminating against persons of Mexican ancestry. Public concerns, especially among Latina/os, with discriminatory enforcement of the immigration laws contribute measurably to the ferocity of the public debate over immigration reform and the perception among Latina/os and others that immigration is a pressing civil rights concern. The disparate racial impacts of immigration enforcement have clearly made it a civil rights issue.
For a variety of reasons, fears of discriminatory immigration enforcement are at their zenith when state and local law enforcement agencies work with the U.S. government in regulating immigration and pursue aggressive enforcement of the immigration laws. Generally speaking, besides being under local political pressures that are more enforcement-oriented – at times even anti-immigrant and racially discriminatory – than those existing at the national level, state and local police cannot reasonably be expected to be as familiar as their federal counterparts with the well-known complexities of the U.S. immigration laws. That limited familiarity makes effective enforcement much more difficult.
U.S. immigration enforcement at the ground level admittedly has long targeted persons of apparent Mexican ancestry. The U.S. government admittedly pursues race-based enforcement of this type in the interior of the United States as well as in the U.S./Mexico border region.
The fact that Mexican immigrants are the single highest priority of U.S. immigration authorities is powerfully symbolized in modern times by the erection and ever-popular extension of the fence along the U.S./Mexico border. Construction of the border fence has proven to be extremely expensive and, at the very same time, of marginal utility in terms of actual immigration enforcement.
Despite its great costs and at best uncertain enforcement benefits, the fortification and extension of the border fence has unquestionably contributed to the circumstances resulting in thousands of migrant deaths, with, as one would expect, Mexican nationals comprising the overwhelming majority of those dying in the desert and mountains in the U.S./Mexican border region. In contrast to the popular focus on the border with Mexico, fortifying the United States’ northern border with Canada has never been a particularly high priority of American policy-makers and the public.
Importantly, the immigration enforcement focus of the American immigration bureaucracy on persons of Mexican ancestry goes much further than the symbolism of the southern border fence. Federal border enforcement officers, with the endorsement of the U.S. Supreme Court, routinely rely on “Mexican” or “Hispanic appearance,” as vague, ambiguous, and overbroad as those descriptors are, as factors properly considered by U.S. immigration officials in deciding to pursue ordinary immigration enforcement actions. This form of racial profiling has contributed to consistently high – indeed record high – removal rates of Latina/o immigrants in the early years of the new millennium.
State and Local
As the analysis of the Secure Communities program demonstrates, recent years have seen dramatically greater involvement of state and local governments in immigration enforcement. Passed overwhelmingly by California voters in 1994, the initiative known as Proposition 187 was a well-known precursor to the many immigration enforcement laws of this type passed by the state legislatures in the first decade of the twenty-first century. Like many of the contemporary state and local immigration measures, the initiative would have required local police to assist in immigration enforcement and, contrary to a Supreme Court ruling, banned undocumented children from the public schools.
More recently, besides increasingly cooperating with federal authorities through programs like Secure Communities, many states, including Alabama, Arizona, Georgia, and South Carolina, and localities, such as Hazleton, Pennsylvania, Farmer’s Branch, Texas and Fremont, Nebraska, enacted record numbers of laws ostensibly designed to facilitate immigration enforcement. At the same time, those laws have struck fear in the hearts of immigrants, lawful and not, and Latina/os generally. Anti-Latina/o animus, which grew perceptibly as the Latina/o population grew in these locales and local political leaders sought to exploit rising tensions, has often marred the vocal political movements pressing for the passage of state and local immigration enforcement laws.
The Supreme Court has repeatedly emphasized that the “‘[p]ower to regulate immigration is unquestionably . . . a federal power.’” Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 1974 (2011) (citation omitted) (emphasis added). Despite this seemingly clear directive, state and local governments still have most enthusiastically moved in recent years into the realm of immigration enforcement. Political motivations appear to have fueled the movement for passage of the laws. Given the emphatic statement by the high Court of the unquestioned federal authority over immigration, it is not surprising that courts have consistently held that many of the state and local immigration enforcement measures, in whole or in part, impermissibly intrude on the federal power to regulate immigration and regularly invalidate them. Despite those rulings, many state and local governments continue to enact such laws, only to have them in large part invalidated by the courts.
State and local political leaders seek to justify state and local immigration enforcement laws on the ground that the federal government has failed to effectively enforce the U.S. immigration laws. These leaders frequently make the exaggerated assertion of that federal failure to enforce the laws despite the dramatic increases in removals and annual removal records discussed below. Whatever its veracity, the persistence of the claim of the lack of federal immigration enforcement reveals a generalized frustration by state and local governments with the perceived ineffectiveness of federal enforcement of the immigration laws. That frustration is exacerbated by the oft-publicized fact that millions of undocumented immigrants live in the country.
State leaders, notably Arizona Governor Jan Brewer, have vociferously criticized the alleged failure of the U.S. government to enforce the immigration laws and argued that that failure justifies increased state enforcement efforts based on the alleged failure. Those leaders also regularly point to the fact that, despite many attempts, Congress has failed to intervene and pass comprehensive immigration reform that “fixes” the “broken” U.S. immigration system.
In the name of enhancing immigration enforcement, a growing number of state immigration enforcement laws require state and local law enforcement officers to assist the federal government in its enforcement efforts. Section 2(B) of Arizona’s S.B. 1070, popularly known as the “show your papers” law, is the most well-known example of a state law of this type. It requires state and local police to verify the immigration status of persons whom they reasonably suspect are in the United States in violation of the federal immigration laws, leaving considerable discretion to the officers. Although invalidating the central provisions of S.B. 1070 as conflicting with the federal power to regulate immigration, the Supreme Court declined to strike down Section 2(B); in so doing, however, the Court left the door open to future challenges of the section as applied by state and local law enforcement agencies to individual cases. Commentators expressed concern that the implementation of Section 2(B) would increase racial profiling of Latina/os.
Critics who colorably claim that state and local immigration enforcement will result in increased racial profiling appreciate that Latina/os, who, even though many are U.S. citizens, are perpetually stereotyped by many Americans as “foreigners” in the United States and presumptively subject to possible removal under the immigration laws. A high-profile piece of civil rights litigation offers an illustration of the kinds of concerns with the racially discriminatory enforcement of the U.S. immigration laws by state and local police agencies. In 2013, a district court ruled that the Maricopa County (Arizona) Sheriff’s Office (MCSO), headed by controversial Sheriff Joe Arpaio, popularly known as “America’s Toughest Sheriff,” had engaged in a pattern and practice of unconstitutional treatment of Latina/os, including U.S. citizens, in its immigration enforcement efforts. In essence, the court found that the MCSO’s aggressive immigration enforcement activities violated the constitutional rights of Latina/os, including lawful immigrants and U.S. citizens, on a mass scale.
Knowledgeable observers could not be surprised by the judicial finding of MSCO’s unlawful pattern of racial discrimination. Arizona has long been at the forefront of states seeking to bolster immigration enforcement, with critics regularly claiming that the state’s actions in this regard in fact discriminate generally against persons of Mexican ancestry. Federal authorities had investigated the MSCO for civil rights violations for years. In addition, Sheriff Arpaio regularly makes insensitive statements about undocumented immigrants and has consistently championed tough measures that amounted to little more than the rounding up of Latina/os as a form of immigration enforcement.
The Obama Administration Has Removed Hundreds of Thousands of Noncitizens
The Obama administration’s immigration enforcement measures contributed to an incredible increase in the number of noncitizens – lawful permanent residents as well as undocumented immigrants – removed from the United States. Today, the U.S. government regularly deports in the neighborhood of 400,000 immigrants a year. In fiscal year 2012, for example, Immigration and Customs Enforcement removed more than 409,000 noncitizens from the United States. See Immigration & Customs Enforcement, FY 2012: ICE Announces Year-End Removal Numbers, Highlights Focus on Key Priorities and Issues New National Detainer Guidance to Further Focus Resources (Dec. 21, 2012). In fiscal year 2013, removals dropped somewhat to 368,644. See U.S. Immigration & Customs Enforcement, FY 2013: ICE Announces Year-End Removal Numbers (Dec. 19, 2013). By way of comparison, removals by the U.S. government were at a little over 30,000 in 1990. See U.S. Dep’t of Homeland Security, Yearbook of Immigration Statistics: 2011 (Table 39).
At bottom, the nation has experienced a greater than ten-fold increase in annual removals in a little more than twenty years. Due to enforcement, detention, and removal machinery progressively expanded over time with strong public support for ever-greater enforcement, almost all that have been put into place post-1965, the record-setting numbers of removals have come fast and furious since the turn of the century.
Widely publicizing its removal records, the Obama administration has emphatically made enforcement and removals through programs like Secure Communities its highest immigration enforcement priority. Indeed, it is little known that this administration, and perhaps as many as all Presidents, has deported more noncitizens than any presidential administration in American history. No previous President, including George W. Bush, has come anywhere close to equaling the Obama administration’s record number of removals. That removal rate may surprise some observers given that President Obama has consistently voiced support for comprehensive immigration reform and received strong political support from Latina/o voters, who in the aggregate generally oppose the Latina/o-focused impacts of U.S. immigration enforcement efforts.
The available data plainly reveals that Mexicans and Central Americans are disproportionally represented among the record number of noncitizens removed from the United States. In fiscal year 2013, for example, Mexico accounted for nearly 68 percent of all removals; removals from Mexico, Guatemala, Honduras, and El Salvador accounting for more than 94 percent of all removals. Thus, Latina/os are the primary victims of removals in modern U.S. immigration enforcement. Consequently, as the nation removes from the United States record numbers of noncitizens year in and year out, it at the same time deports record numbers of Mexican and Central American noncitizens annually as well. These undisputed racial and national origin consequences are often ignored, or minimized, by proponents of ever-greater immigration enforcement.
Disparate removal outcomes can be directly traced back to the congressional enactment of the Immigration Act of 1965 and the 1976 amendments, with their new and inflexible restrictions on legal immigration from Mexico and Latin America through the Western Hemisphere ceiling and per country caps. As discussed previously, these changes in the law effectively transformed thousands of lawful Mexican and Latin American immigrants into undocumented ones subject to removal from the United States. With considerable public support, the laws triggered a series of events resulting in a prolonged and concerted effort by the U.S. government to significantly reduce immigration from Mexico and Latin America and deport undocumented immigrants.
The disparate impacts of hundreds of thousands of removals annually have not been lost on persons of Mexican ancestry, and Latina/os generally, living in the United States. Many Latina/os view the current U.S. immigration laws and the enforcement machinery as nothing less than racially discriminatory. Immigrant and civil rights groups vigorously contest the disparate impacts of the various enforcement and removal measures. To add insult to injury, the enforcement effects result each year in the separation of hundreds of thousands of families, including those with family members who are U.S. citizens and lawful immigrants, and disrupt and frighten noncitizens across the United States.
Along these lines, advocacy groups seek to protect the civil rights of immigrants and U.S. citizens against the government’s increasingly aggressive efforts to remove immigrants, including lawful permanent residents who, as previously discussed, have had brushes – at times relatively minor – with the law. In turn, deep concerns with the racially-discriminatory operation and enforcement of the U.S. immigration laws contribute to the highly contentious nature of the national debate over immigration reform, thereby helping to make it a political issue of the utmost importance to the Latina/o community, including many U.S. citizens as well as immigrants, in the United States.
Employment Discrimination and DACA -- Employers Must Be Educated by Geoffrey A. Hoffman and Jill Y. Campbell
Employment Discrimination and DACA -- Employers Must Be Educated by Geoffrey A. Hoffman, Clinical Associate Professor and Univ. of Houston immigration clinic director and Jill Y. Campbell, Clinical Supervising Attorney, Univ. of Houston immigration clinic
The Deferred Action for Childhood Arrivals ("DACA") program should be clarified for employers to prevent employment discrimination, which is happening at an alarming rate to DACA recipients. The program rolled out in the summer of 2012 provides "lawful presence" and the right to authorized work to immigrants who qualify. The requirements are quite stringent. To qualify a person has to have entered the U.S. before the age of 16, have continuously resided in the U.S. since June 15, 2007, had to have been under age 31 as of June 15, 2012, entered without inspection or be currently out of status, and currently be in school or have graduated high school or have a GED. There are other requirements, for example, including not having been convicted of a felony, significant misdemeanor, or three or more other misdemeanors. The DACA program is discretionary. Even if one meets the eligibility requirements the federal agency granting the benefit (USCIS) can still deny the application if it determines the person, for example, poses a threat to public safety or national security.
The most important aspect of DACA, for many, is the right to work. In appropriate cases, immigrants can obtain an employment authorization document (EAD) where he or she can show "economic necessity." With an EAD, a DACA recipient can obtain a social security number, allowing the individual to work legally, pay taxes under the social security number, and build their credit. An EAD also may allow one to obtain a valid state driver's license which serves as a crucial identity document and allows one to drive without fear of being stopped without a license. The right to work does not require a "sponsor" and is renewable after 2 years. Moreover, DACA itself is renewable and there is every reason to expect that it will be renewed so long as the circumstances supporting its issuance in the first place do not change, for example, the person maintains a good record and pursues their education or goes to college or whatever the case may be.
Many employers do not understand DACA. Many believe - incorrectly - that a "sponsor" is needed. This assumption appears to be premised on a misunderstanding about DACA versus traditional employment-based immigration. In the traditional case, an employer would petition for an immigrant who would join or be transferred to a company or firm here in the U.S. However, no such sponsor is required under DACA, and DACA recipients can begin work immediately as long as their EADs are approved.
Moreover, employers have turned away eligible DACA hires due to a misunderstanding about the duration of the program. Believing, again incorrectly, that a person's authorization will run out for good in less than 2 years, some are reluctant to hire these immigrants. However, there is no question that DACA, with its authorization to work, is renewable. There is no reason to turn away otherwise eligible candidates, many of whom are college graduates, just because the benefit has to be renewed. It should be noted that DACA recipients throughout Houston present a wealth of talent and skills. Many of these DACA graduates received their degrees in engineering, accounting, and education. Now these graduates have work authorization and the ability to contribute to the Houston economy. Houston area employers should take advantage of these graduates who are now permitted to work and use their hard-earned degrees.
Employment discrimination is prohibited by federal and state law, and this includes DACA recipients. The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the antidiscrimination provisions in the Immigration and Nationality Act (8 U.S.C. § 1324b). Importantly, in February of this year, the OSC issued a detailed flyer to DACA recipients outlining their employment rights, available here.
DACA provides "lawful presence" to those who qualify and are granted the benefit. Although the federal government has been clear that no legal "status" is conferred it does in appropriate cases provide for lawful presence and the right to work. These individuals are subject to federal and state employment protections which must be followed by all employers.
In OBAMA'S PARADOXICAL DEPORTATION POLICIES, Cyrus D. Mehta writes that "President Obama has been called the Deporter in Chief as he has presided over nearly 2 million deportations during his presidency – higher than that of any other President. On the other hand, President Obama has also rolled out some of the most innovative prosecutorial discretion policies, which include granting deferred action to hundreds of thousand immigrants who came to the United States when they were young." Click the link above for further analysis.
Immigration Article of the Day: What Would an Unbroken Immigration System Look Like? by David A. Martin
What Would an Unbroken Immigration System Look Like? by David A. Martin, University of Virginia School of Law October 11, 2013 Virginia Public Law and Legal Theory Research Paper No. 2014-25
Abstract: This paper, which was delivered as the keynote address at the Miller Center’s immigration reform conference in 2013, surveys the obstacles to immigration reform and argues for specific steps forward. The key principles underlying the analysis are sustaining and expanding legal immigration and commitment to future law compliance through a mix of well-designed deterrents and more focused direct enforcement.
The paper urges the House to accept a capacious legalization of long-time de facto residents, as provided for in the Senate’s 2013 immigration reform bill. The House should see such a step (counterintuitively) as a long-term immigration enforcement measure – because it would reduce key obstacles to vigorous interior enforcement in the future and also help enhance the legitimacy of important programs now under severe challenge, such as Secure Communities, by minimizing their use against long-term well-anchored residents. The 1986 IRCA experience, wherein legalization was successful but the associated enforcement measures largely failed, should not count against this approach, because the United States now has extensive enforcement tools and resources not at all available in 1986 – though they need to be deployed intelligently in order to achieve full post-reform success. E-Verify, which provides for a speedy computer check of the employment authorization of new hires, is a highly promising deterrent. Nonetheless, it remains vulnerable to identity fraud and identity theft. Congress needs to assure more vigorous and well-funded measures to fight such fraud, either through biometric systems at hiring sites (politically unlikely) or through much greater inducements to states to share their driver’s license photos for use in E-Verify’s “photo tool.” Congress should also shed its fixation on deploying a biometric exit system as a way of enhancing enforcement against visa overstays; the paper explains why such a system at this point is a wasteful exercise. Congress instead should provide for enhanced action against overstays that would use biographic information already available in existing Homeland Security data systems. It should also enact streamlined procedures, with focused safeguards, to enable speedy issuance of a removal order against overstays. The Senate bill lavished unnecessary billions on expanded border enforcement; most of those new resources should be applied instead to enhanced interior enforcement.
Sunday, April 6, 2014
AP reports immigration advocates and supporters rallied Saturday in cities across the country in a renewed effort to push President Barack Obama to put a freeze on deportations. While the Obama administration has deported hundreds of thousands of immigrant annually as part of a concerted political strategy to persuade Congress to pass comprh3ensive immigration reform, reform proposals have failed to this point.
From the Bookshelves: Ellis Island Nation: Immigration Policy and American Identity in the Twentieth Century by Robert L. Fleegler
Though debates over immigration have waxed and waned in the course of American history, the importance of immigrants to the nation's identity is imparted in civics classes, political discourse, and television and film. We are told that the United States is a "nation of immigrants," built by people who came from many lands to make an even better nation. But this belief was relatively new in the twentieth century, a period that saw the establishment of immigrant quotas that endured until the Immigrant and Nationality Act of 1965. What changed over the course of the century, according to historian Robert L. Fleegler, is the rise of "contributionism," the belief that the newcomers from eastern and southern Europe contributed important cultural and economic benefits to American society.
Early twentieth-century immigrants from southern and eastern Europe often found themselves criticized for language and customs at odds with their new culture, but initially found greater acceptance through an emphasis on their similarities to "native stock" Americans. Drawing on sources as diverse as World War II films, records of Senate subcommittee hearings, and anti-Communist propaganda, Ellis Island Nation describes how contributionism eventually shifted the focus of the immigration debate from assimilation to a Cold War celebration of ethnic diversity and its benefits—helping to ease the passage of 1960s immigration laws that expanded the pool of legal immigrants and setting the stage for the identity politics of the 1970s and 1980s. Ellis Island Nation provides a historical perspective on recent discussions of multiculturalism and the exclusion of groups that have arrived since the liberalization of immigrant laws.
Robert L. Fleegler teaches history at the University of Mississippi.