Wednesday, June 22, 2016
In Torres v. Lynch (May 19, 2016), the Supreme Court in an opinion by Justice Elena Kagan addressed whether interstate commerce that is an essential element of a federal crime is a necessary element to make a state crime an "aggravated felony," thus making an immigrant ineligible for cancellation of removal and other remedies.
Luna was found guilty of arson under New York law. In New York unlike in the federal statute, the crime of arson does require that the crime have a link to interstate or foreign commerce. The federal crime of arson is considered to be an aggravated felony.
This case considers whether an interstate commerce element is necessary to make the New York crime of arson an "aggravated felony" for immigration purposes. 8 U.S.C. 1101 (a)(43) defines an "aggravated felony." In 1999, Torres pleaded guilty to third degree arson and was sentenced to one day in jail and five years’ probation. Seven years later, immigration officials initiated removal proceedings. The immigration court denied his claim for cancellation of removal, finding that he had been convicted of an "aggravated felony."
The federal statute defines arson or makes it a crime to “ maliciously damage or destroy, or attempt  to damage or destroy, by means of fire or an explosive, any building [or] vehicle . . . used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” (emphasis added). The New York arson statute prohibits “intentionally damag[ing],” or attempting to damage, “a building or motor vehicle by starting a fire or causing a fire or causing an explosion.” N.Y. Penal Law Ann. sections 110, 150.10 (West 2010). It does not have an interstate commerce element. Both of the statutes are the same except for the jurisdictional element of interstate commerce present in the federal statute. Because the interstate commerce section is merely a jurisdictional element, the Board of Immigration Appeals denied Luna’s petition for review of the removal order. The Second Circuit affirmed.
The Court held that “A state offense is an aggravated felony when it has all the elements of a listed federal crime except one requiring a connection to interstate commerce.” Torres v. Lynch 136 S. Ct. 1619, 1624 (2016). Section 1101(a)(43)’s penultimate sentence provides that Congress meant the term “aggravated felony” to capture serious crimes regardless of whether they are prohibited by federal, state, or foreign law. Section 1101(a)(43) applies to federal, state, and foreign crimes and makes clear that the listed offense should lead to swift removal, no matter what level of law enforcement it violated.
There is a settled practice of distinguishing between substantive and jurisdictional elements of federal criminal laws and finding that state laws that do not include an interstate commerce requirement are the equivalent. The jurisdictional elements limit the federal law to what Congress can constitutionally legislate. Ordinarily, a criminal defendant does not need to be aware of an interstate commerce connection to be found guilty. The Supreme Court and others recognize the jurisdictional elements as distinct from the substantive elements of federal and state crimes.
Luna contended that if Congress had intended ordinary state laws like arson to count as aggravated felonies, it would have clearly so stated in the statute. However, the Court found that Congress meant for the jurisdictional elements to be set aside when comparing federal and state law. Because the New York arson law and the federal statute only differ in regards to the interstate commerce element, the Court held that, so long as all other elements of the state law match the federal law, the jurisdictional element can be disregarded. The Court affirmed the Second Circuit's decision.
Justice Sotomayor, joined by Justices Thomas and Breyer, dissented. She wrote that, because of precedent and the structure of the Immigration and Nationality Act (INA), the majority erred. She emphasized that, until this case, the Court had always required every element of a state crime to match every element of a federal crime for those listed as aggravated felonies. The federal statute, unlike the state counterpart, is limited to those cases that involve interstate commerce. The lack of an interstate element under the state statute meant that a conviction under the statute was not an aggravated felony.
Justice Sotomayor observed that, Congress could exclude jurisdictional elements but failed to do so here. The majority presumes that state arson offenses and federal arson offenses are equal when they are not. At the end of the day, the Court is saying that mostly law abiding legal permanent resident can be deported due to a minor state offense even when not every element of the federal offense was satisfied.
From the Bookshelves: Integration Nation: Immigrants, Refugees, and America at Its Best by Susan E. Eaton
Integration Nation takes readers on a spirited and compelling cross-country journey, introducing us to the people challenging America’s xenophobic impulses by welcoming immigrants and collaborating with the foreign-born as they become integral members of their new communities. In Utah, we meet educators who connect newly arrived Spanish-speaking students and U.S.-born English-speaking students, who share classrooms and learn in two languages. In North Carolina, we visit the nation’s fastest-growing community-development credit union, serving immigrants and U.S.-born depositors and helping to lower borrowing thresholds and crime rates alike.
In recent years, politicians in a handful of local communities and states have passed laws and regulations designed to make it easier to deport unauthorized immigrants or to make their lives so unpleasant that they’d just leave. The media’s unrelenting focus on these ultimately self-defeating measures created the false impression that these politicians speak for most of America. They don’t.
Integration Nation movingly reminds us that we each have choices to make about how to think and act in the face of the rapid cultural transformation that has reshaped the United States. Giving voice to people who choose integration over exclusion, Integration Nation is a desperately needed road map for a nation still finding its way beyond anti-immigrant hysteria to higher ground.
Tuesday, June 21, 2016
Many Americans are binge watching the new season of Netflix sensation "Orange is the New Black," which was released on Friday One of its stars, Diane Guerrero, a U.S. citizen, whose parents were deported to Colombiawhen she was a teen, advocates for the rights of immigrants in this Time opinion piece. NPR interviewed Guerrero, who also stars in Jane the Virgin.
Brian Bennett of the Los Angeles Times reports that a senior FBI official has been named chief of the U.S. Border Patrol in an effort to curb abuses, investigate corruption and improve discipline within the 21,000-member force. Mark Morgan, who heads the FBI training division, is the first outsider to lead the Border Patrol in its 92-year history. He inherits a force under fire for ignoring or downplaying shootings of unarmed people and other abuses by agents, and of doing too little to stem corruption by drug cartels, smugglers and other criminals.
Refugees are often considered an economic burden for the countries that take them in, but a new study conducted by UC Davis with the United Nations World Food Program indicates that refugees receiving aid — especially in the form of cash — can give their host country’s economy a substantial boost.
Cyrus Mehta on the Insightful Immigration Blog writes Donald Trump is fond of reading the lyrics from Al Wilson’s 1968 R&B hit song “The Snake” in his campaign rallies. While this is a catchy tune, Trump has now corrupted the song by associating it with his opposition to Muslims. He first called for a ban on Muslims entering the United States, including Syrian refugees, and recently modified it by calling for a suspension of immigration from areas of the world when there is a proven history of terrorism against the United States or its allies. Trump most recently said that the United States should consider more racial profiling, in response to a question about whether he supported greater law enforcement scrutiny of Muslim Americans after the Orlando mass shooting. If all of these proposals were implemented, it would impede the ability of millions of temporary visa holders and immigrants to legitimately enter the United States. Mehta sees Trump as having made The Snake "a hate anthem against Muslims."
Judicial Watch announced that it obtained 693 pages of Department of Homeland Security records revealing that Secretary Jeh Johnson and 28 other agency officials used government computers to access personal web-based email accounts despite an agency-wide ban due to heightened security concerns. The documents also reveal that Homeland Security officials misled Rep. Scott Perry (R-PA) when Perry specifically asked whether personal accounts were being used for official government business.
Others Homeland Security officials included among those receiving waivers permitting them to use personal, web-based email on government computers despite the official ban included:
ANMS2 [Alejandro N. Mayorkas, deputy secretary]
Bunnell, Stevan E. [general counsel]
Chavez, Richard [director of the Office of Operations Coordination]
Gottfried, Jordan [Chief of Staff]
JCJ [Jeh Charles Johnson, secretary of Homeland Security]
Kronisch, Matthew [associate general counsel (Intelligence)]
Marrone, Christian [chief of staff]
Meyer, Jonathan [deputy general counsel]
Rosen, Paul [deputy chief of staff]
Shahoulian, David [deputy general counsel]
Silvers, Robert [deputy chief of staff]
Taylor, Francis X [undersecretary for intelligence and analysis]
Veitch, Alenandra [acting deputy assistant secretary]
Waters, Erin [director of strategic communication]
Monday, June 20, 2016
UC Davis Immigration Law Clinic Teams Up With Greek NGO Metadrasi and Reed Smith LLP to Address European Refugee Crisis
UC Davis Law Professor Holly Cooper contributed this World Refugee Day 2016 post:
An estimated 65,000 refugees are trapped in Greece, and Holly Cooper teamed up with Reed Smith and Metadrasi, a Greek NGO, to provide legal support to the refugees in Greece.
Recently, the international law firm of Reed Smith sent a team of 10 international and Greek lawyers to the islands of Lesvos, Samos and Chios. Holly Cooper joined the team for two weeks and provided legal support on the island of Samos—where there are approximately 1200 refugees living in a refugee camp outside Samos City. Holly supported Metadrasi in its effort to identify durable solutions for unaccompanied children, monitor conditions in camps, advocate for vulnerable populations (elders, the disabled, women), and develop legal frameworks to ensure the EU-Turkey deal is not implemented in a way that would violate international and Greek law.
The firm will continue to send volunteer teams to support Metadrasi in its work with refugees, and it will strive to support the Greek government, EASO, UNHCR and nonprofits working to address this overwhelming crisis. The international community can and should do more to support Greece in its effort to protect refugees.
Check out this ad from the U.K. Independence Party, which favors the United Kingdom's exit from the European Union (-aka- Brexit).
The Atlantic has thoughtful discussion of the poster and the immigration battle at the heart of Brexit.
(1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months;
(2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and
(3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.
The Ninth Circuit, in an opinion by Judge Wardlaw, affirmed in part and reversed in part the district court’s order granting summary judgment and a permanent injunction in a class action lawsuit by non-citizens within the Central District of California challenging their prolonged detentions under civil immigration detention statutes 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), and 1231(a) without individualized bond hearings or determinations to justify continued detention. The panel affirmed the district court’s permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention. The panel also held that IJs must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class’s request for additional procedural requirements.
The panel held that subclass members subject to prolonged detention under mandatory detention statutes §§ 1225(b) and 1226(c) are entitled to bond hearings, and that subclass members subject to discretionary detention under § 1226(a) are entitled to automatic bond hearings after six months of detention. In an issue this court had not previously addressed, the panel held that the government must provide periodic bond hearings every six months.
The Solicitor General in seeking review argued that
"The court of appeals’ ruling also solidifies an acknowledged split of authority among the circuit courts of appeals. See Lora v. Shanahan, 804 F.3d 601, 614 (2d Cir. 2015) (describing the split and collecting citations). The Second Circuit has recently chosen to "follow the Ninth Circuit" and adopted the "bright-line approach," requiring bond hearings by the six-month mark for aliens detained under Section 1226(c). Lora, 804 F.3d at 615-616.6 By contrast, the Third and Sixth Circuits, while taking the position that detention without a bond hearing under Section 1226(c) is limited to a "reasonable" time, have squarely rejected the rigid six-month rule and instead assess reasonableness based on a case-specific balancing inquiry. See Ly, 351 F.3d at 271-273 (rejecting a ‘‘bright-line time limitation"); Diop v. ICE/Homeland Sec., 656 F.3d 221, 233 (3d Cir. 2011) ("We decline to establish a universal point at which detention will always be considered unreasonable."); see also Leslie v. Attorney Gen. of U.S., 678 F.3d 265, 269 (3d Cir. 2012) (discussing "[t]he fact-dependent inquiry"); Chavez-Alvarez, 783 F.3d at 474 ("By its very nature, the use of a balancing framework makes any determination on reasonableness highly fact-specific.")."
As reported by Jess Bravin of the Wall Street Journal, the ACLU has accused the Solicitor General of underreporting of lengthy detentions of immigrants in the briefing in Demore v. Kim (2003), which upheld detention of a "criminal alien" awaiting removal.
If you have not seen the five part ESPN series O.J.:Made in America, I highly recommend it as a study of race, class, and gender in modern America.
It is the defining cultural tale of modern America - a saga of race, celebrity, media, violence, and the criminal justice system. And two decades after its unforgettable climax, it continues to fascinate, polarize, and even, yes, develop new chapters. Now, the producers of ESPN's award-winning "30 for 30" have made it the subject of their first documentary-event and most ambitious project yet. From Peabody and Emmy-award winning director Ezra Edelman, it's "O.J.: Made in America"."O.J." revisits - and redefines - it all. The domestic abuse. The police investigation. The white Bronco chase. The trial of the century. The motive, the blood, the glove. The verdict. The aftermath. Drawing upon more than seventy interviews- from longtime friends and colleagues of Simpson to the recognizable protagonists of the murder investigation to observers and commentators with distinct connections to the story - the docu-event is an engrossing, compelling, and unforgettable look at a tantalizing saga. Because at the end of what seems like a search for the real truth about O.J. Simpson, what's revealed just as powerfully is a collection of indelible, unshakeable, and haunting truths about America, and about ourselves.
Daniel Davis on VOX thoughtfully analyzes what is at the core of the campaign over the Brexit referendum in the UK. On Thursday, voters in Britain will go to the polls to decide whether to stay in the European Union or exit. "For many Brits, the debate isn’t just about Britain’s economic future — it’s a culture war over British identity. Many supporters see leaving the EU as essential to safeguarding Britain’s distinctive culture and political institutions, while opponents have portrayed the exit campaign as nativist and intolerant. This debate became even more heated after a member of Parliament was murdered on Thursday by a man with alleged ties to white supremacist groups."
"Well I think profiling is something that we're going to have to start thinking about as a country," the presumptive GOP nominee said in a phone interview with CBS' "Face the Nation. "Other countries do it, you look at Israel and you look at others, they do it and they do it successfully. And I hate the concept of profiling but we have to start using common sense and we have to use our heads."
Click here for more on this story.
I argue that the solution to this problem lies in a kind of algorithmic affirmative action. This would require training algorithms on data that includes diverse communities and continually assessing the results for disparate impacts. Instead of insisting on race or gender neutrality and blindness, this would require decision-makers to approach algorithmic design and assessment in a race and gender conscious manner.
All eyes are focused on the Supreme Court and the future of President Obama's expanded deferred action program as a decision awaits in the case of United States v. Texas. Professor Amanda Frost reminds us of some of the other avenues for undocumented immigrants who seek to regularize their immigration status as well as the impediments to those forms of relief in this article in the Atlantic.
For the past 18 months, President Obama’s executive actions on immigration reform have been bogged down in litigation. Texas and 25 other states argue that Obama overstepped his authority by effectively overruling or rewriting federal immigration laws to allow unauthorized immigrants to stay and work in the United States. But some unauthorized immigrants are eligible to become legal residents using existing laws and regulations. In many cases, they just don’t know how to apply due to a lack of resources and information.
It’s a common problem: Unauthorized immigrants are often unaware of laws that can grant legal status and, in any case, they find it difficult to navigate the complex process. Immigration lawyers have observed that immigrants do not fare well without legal assistance. A UCLA study found that individuals in removal proceedings who obtained legal representation were 15 times more likely to apply for relief from removal than those without lawyers, and five-and-a-half times more likely to be granted some sort of legal status that permitted them to stay in the United States.
Unlike criminal defendants, however, unauthorized immigrants don’t have a constitutional right to a government-funded lawyer. According to the UCLA study, only 37 percent of all immigrants, and 14 percent of detained immigrants, are represented by lawyers. Children also go unrepresented in immigration court.
As a result, many unauthorized immigrants do not take advantage of laws allowing them to become legal residents. Officials can grant legal status to children who are unauthorized if a state court finds that the child has been neglected, abused, or abandoned by a parent, and that it is not in the child’s best interest to return to his or her home country. Immigration officials also have the discretion to give an unauthorized immigrant permission to leave the United States briefly to apply for a visa and then to re-enter as a lawful permanent resident if a longer separation would cause the individual’s legally present spouse or parent “extreme hardship.” Similarly, immigration judges can grant legal status to long-term, law-abiding unauthorized immigrants whose deportation would cause “exceptional and extremely unusual hardship” to their legally present relatives. Victims of crimes can also qualify for a special visa if a law-enforcement officer attests that they are willing to help in the investigation.
Click the link above to read more of this article.
The UN stands with refugees on Intenational Refugee Day. We all should as well.
In a world where violence forces hundreds of families to flee each day, the UN Refugee Agency believes now is the time to show world leaders that the global public stands with refugees, and it will launch its #WithRefugees petition on June 20th to send a message to governments that they must work together and do their fair share for refugees.
The #WithRefugees petition will be delivered to UN headquarters in New York ahead of the UN High Level Meeting on Refugees and Migrants, scheduled for the 19th September. The petition asks governments to:
- Ensure every refugee child gets an education.
- Ensure every refugee family has somewhere safe to live.
- Ensure every refugee can work or learn new skills to make a positive contribution
to their community.
World Refugee Day has been marked on 20 June, ever since the UN General Assembly, on 4 December 2000, adopted resolution 55/76 where it noted that 2001 marked the 50th anniversary of the 1951 Convention relating to the Status of Refugees, and that the Organization of African Unity (OAU) had agreed to have International Refugee Day coincide with Africa Refugee Day on 20 June.
Sunday, June 19, 2016
Today is Father's Day, and HuffPo has a series of powerful photos showing the incredible love of refugee fathers caring for their children.
Closer to home, here's a photo I snapped in San Diego a few shorts week ago. The father of these young ones was on the U.S. side of Friendship Park, visiting his family in Mexico through the fence.
Wishing you and yours a special day with family, together.
Immigration Article of the Day: Ethical and Effective Representation of Unaccompanied Immigrant Minors in Domestic Violence-Based Asylum Cases by Julie Greenwald Marzouk
Ethical and Effective Representation of Unaccompanied Immigrant Minors in Domestic Violence-Based Asylum Cases by Julie Greenwald Marzouk, Chapman University, The Dale E. Fowler School of Law 2016, 22 CLINICAL L. REV. 395 (2016) Chapman University, Fowler Law Research Paper No. 16-03
Abstract: In the last two years more than 100,000 immigrant minors have flooded the southern border of the United States. Many of the children seeking refuge are domestic violence survivors whose governments cannot or will not protect them from familial assault, rape, and torture. Responding to the critical need for lawyers, the Family Protection Clinic at Chapman University Fowler School of Law represented four unaccompanied minors facing deportation. The children, siblings ranging in ages from thirteen to eighteen, fled Central America to escape extreme sexual and physical abuse at the hands of their father. This article focuses on specific opportunities and challenges encountered during the Clinic’s representation of the minors to shed light on the pedagogical possibilities presented by the legal and humanitarian crisis of child migration. The article seeks to engage clinicians and law students in the representation of immigrant children and attempts to articulate best practices for enhancing student learning. The purposeful lawyering of unaccompanied minors in domestic violence-based asylum cases is a meaningful vehicle to teach practical lawyering skills, professional ethics, and critical analysis of the current legal paradigm. In selecting these cases, clinicians will be afforded the opportunity to teach the law of asylum, respond to a refugee disaster, and train the next generation of effective social justice advocates.
U.S. Immigration and Customs Enforcement's (ICE) has announced that Enforcement and Removal Operations (ERO) arrested 331 individuals during a monthlong operation targeting criminal aliens and other immigration violators in six Midwestern states. This operation began May 9 and concluded Monday. It is part of the Obama administration's efforts to arrest and remove convicted criminal aliens.
The arrests were made in the following six states: Illinois, Indiana, Wisconsin, Kentucky, Kansas and Missouri.
In Illinois, one of the states subject to the operation, 107 noncitizens were arrested. Ninety-six of the 107 have been convicted of crimes in the United States, including: robbery, possessing a stolen vehicle, aggravated DUI, rioting, aggravated sexual abuse, aggravated assault on an officer, and weapons offenses. The remaining 11 are agency priorities as recent border crossers. Twenty-one had previously been deported and illegally re-entered the United States.
The raids, as ordinarily is the case, had racial and gender impacts. 97 of the 107 were from Mexico, Guatemala, and Honduras. The 106 males and one female arrested in the Chicago area are from the following countries: Belize (1), Bosnia (1), Ecuador (1), Guatemala (8), Honduras (3), Lithuania (3), Mexico (86), Poland (1), Senegal (1), and New Guinea (2). The majority were arrested in Chicago (47), Cicero (7) and Waukegan (5). Additional arrests took place in various Chicago suburbs.