Monday, April 18, 2016

Analysis of Oral Argument in United States v. Texas

Supreme court

Here is the transcript and here us the audio of the oral argument earlier today in United States v. Texas, which raises the question of the lawfulness of the Obama administration's expanded deferred action program for undocumented parents of U.S. citizens and lawful permanent residents (known as DAPA) announced in November 2015.

Lyle Denniston analyzed the argument on SCOTUSBlog and reads the tea leaves as indicating a possible win for the Obama administration. 

The line-up of the advocates can be found here.

From reading the transcript, here are my thoughts on this much-anticipated argument:  

Standing under Article III of the U.S. Constitution is a threshold question.  As should have been the case, it was the subject of considerable questioning during the argument.  In the end, the Justices appeared to be divided on how a majority would ultimately come down on the question.  

Solicitor General for the United States Donald Verrilli was the first to argue.  The argument seemed to go generally as expected, with no big surprises.  Standing figured prominently in the argument from the outset. Apparently having standing on his mind, Chief Justice Roberts redirected Verilli to address the issue after Justice Ginsburg almost immediately after the argument began inquired about the merits. 

Although Verilli did get to briefly discuss the merits of the deferred action "guidance," the bulk of the questioning was on standing.  Verilli argued that Texas and the states lacked standing under Article III because (1) the alleged injury of increased costs of issuing driver’s licenses to deferred action recipients was not redressable by the relief being sought; and (2) there was no concrete particularized injury to the states resulting from the administration's expanded deferred action program.

Chief Justice Roberts, who dissented in Massachusetts v. EPA, asked Verilli whether the injury in this case was “any more indirect and speculative” (Transcript p. 18, lines 3-5) from that one.  In that case, a majority held that Massachusetts had standing to challenge a failure of the Environmental Protection Agency to regulate greenhouse gas emissions. 

Justice Alito asked who would have standing to challenge a President's policy decision to have “open borders.”   

Justice Breyer pushed the limits of the states' theory of standing by asking if Rhode Island would have standing to challenge a federal statute requiring that the states give a driver’s license to every member of the armed forces and the federal government transferred 250,000 soldiers to Rhode Island. Justice Sotomayor also noted the potential expansiveness of a finding that Texas had standing and challenges to federal laws and regulations.

President/General Counsel of the Mexican American Legal Defense and Education Fund Thomas Saenz, next argued for three parent intervenors who would benefit from the expanded deferred action program. Although clearly he was primed on the merits, the Justices asked him about standing and Saenz responded credibly.  In arguing that the states lacked standing, Saenz  emphasized that“this is a political dispute. [The states challenging the Administration] do not agree with the policy adopted by the Administration . . . . “ Transcript p. 39, lines 13-14. Along these lines, Justice Breyer later in the argument acknowledged that the case had “tremendous political valence.” Transcript p. 61, line 5.

Chief Justice Roberts tried unsuccessfully to get Saenz to concede that a Texas policy denying deferred action recipients from driver’s license eligibility would be unlawful. In response to a question from Justice Sotomayor, Saenz later noted that not every state makes deferred action recipients eligible for licenses. 

Texas Solicitor General Scott Keller (formerly Chief Counsel to Presidential candidate Ted Cruz), for the 26 states challenging the expanded deferred action programs.  He was asked more about the merits than the standing question. 

During Keller's argument, several Justices pressed an apparent compromise solution.  It involved the language in the administration’s guidance affording deferred action recipients "lawful presence" and seems to have muddied the waters.  Removal of that language might be a possible way to defuse the dispute. Verilli initially raised this possibility.  When forced to address whether removal of the "lawful presence" language would be sufficient to address the issues raised by the states, Keller quoted language from the guidance: “Deferred action means that for a specified period of time, an individual is permitted to be lawfully present in the United States.” (emphasis added).  Keller (and later Erin Murphy) stated that removal of the language would not be sufficient but it was unclear to me whether any of the justices agreed.

Another issue came up in discussion of the merits.  Under another regulation in place for decades, deferred action recipients and receive work authorization. That regulation was not challenged in this litigation.  Justice Kennedy intimated that, if that was the true problem in this case, it might would have been proper to challenge the regulation under the Administrative Procedure Act.

Erin Murphy, partner at the law firm Bancroft LLP, argued last on behalf of the U.S. House of Representatives as amicus supporting the states' challenge to the President's immigration guidance.  From a paper transcript, she appeared confident and pushed the envelope but did not have quite the grasp of the immigration laws of her colleagues.  Murphy, for example, at the outset stated that the administration adopted immigration reform that Congress considered and did not enact.  Justice Sotomayor quickly corrected Murphy and pointed out that the Obama immigration program in no way created a "pathway to citizenship" like that found in many comprehensive immigration reform proposals.

Four final points:

1.  Justice Kennedy viewed the case as one about the limits of discretion and suggested that the expanded deferred action programs constituted a legislative act by the President, which is “just upside down.”  It was not clear to me of his take on the standing question.

2.  There was no questions from the justices on the “Take Care” argument based on Article II, section 3.  The Court had ordered the parties to brief the issue. Nor did any of the advocates raise the issue.

3.  Justice Thomas was silent at the oral argument.

4.  The argument did not highlight that the expanded deferred action programs were (1) temporary in nature and did not afford undocumented immigrants any kind of permanent relief; and (2) could be changed by a new President and/or Congress.

 

As we learned from the Affordable Care Act case, it is hazardous to predict how the Supreme Court will rule on a case based on the oral arguments.   After that argument, few commentators thought that Verilli and the Obama and administration would prevail; but they did.  Here, although the outcome is hard to predict with certainty, it appears that (1) standing in this case is a central issue to the justices: (2) the "Take Care" argument is not; and (3) winning is not a sure thing for either side.  Still, my instincts are that the Obama administration may come out okay in United States v. Texas in the end.

KJ

April 18, 2016 in Current Affairs | Permalink | Comments (0)

Before Ellis Island, There Was Castle Garden


Oklahoma Photo via the Boston Public Library

You've no doubt spent today glued to the internets scouting for word about United States v. Texas. Sure, it's fun to speculate about what SCOTUS might do, but we'll be waiting on a decision for a few months.

So why not take a fun and distracting trip down history lane with this great piece on Castle Island in New York City.

In 1855, New York City started using Castle Garden (a former fort turned beer garden) as a "state-run immigration portal." As Atlas Obsura describes it, Castle Garden "wasn’t just the main point of entry for immigrants to the U.S., it was the only organized immigration station in the entire country."

Immigrants arriving at Castle Garden were screened for disease and offered treatment. And while it was a place to meet up with family in the New World, it was also a place filled with con artists looking to scam the new arrivals.

One of the most fascinating tidbits in the article is this:

the Yiddish noun kesselgarten, which means “disorder and chaos”, comes directly from a pronunciation of Castle Garden.

Castle Garden remained open until 1890. Thereafter, immigrants were sent to the Barge Office and, later, Ellis Island. 

It is now a national monument, and it is definitely on my list to visit the next time AALS rolls around to NYC.

-KitJ

April 18, 2016 in Teaching Resources | Permalink | Comments (0)

Transcript to the Oral Argument in United States v. Texas

Here it is.  Lyle Denniston analyzes the argument on SCOTSBlog and reads the tea leaves as indicating a possible win for the Obama administration. 

KJ

April 18, 2016 in Current Affairs | Permalink | Comments (0)

SAVE THE DATE: Central States Law Schools Scholarship Conference

SAVE THE DATE: Central States Law Schools Scholarship Conference

The Central States Law Schools Association 2016 Scholarship Conference will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND.  

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Registration will formally open in July. Hotel rooms are already available, and more information about the CSLSA conference can be found on our website at www.cslsa.us.

KJ

April 18, 2016 in Current Affairs | Permalink | Comments (0)

Chief Justice Roberts to Side With Justices Who Say that Texas Lacks Standing in United States v. Texas?

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 Adam Liptak writes of the possibility that Chief Justice John Roberts might side with the Obama administration in United State v. Texas and find, consistent with his previous interpretations of Article III standing doctrine, that Texas lacks standing to sue to enjoin the administration's expanded deferred action program.  Standing is one of the central issues in the case and likely will be the issue of some questioning at oral argument later this morning.

Roberts before joining the Supreme Court wrote in the Duke Law Journal that “[b]y preserving the proper bounds of Article III standing, the judiciary prevents itself from `aggrandiz[ing] itself . . . at the expense of one of the other branches.’” Roberts was defending the Court’s 1992 holding in Lujan v. Defenders of Wildlife that environmental organizations lacked standing to challenge federal regulations under the Endangered Species Act of 1973. Roberts noted that, although standing doctrine barred the plaintiffs from federal court, Congress could take the action sought by the environmental groups:

"Standing is an apolitical limitation on judicial power. It restricts the right of conservative public interest groups to challenge liberal agency action or inaction, just as it restricts the right of liberal public interest groups to challenge conservative agency action or inaction. It . . . derive[s] from and promote[s] a conception that judicial power is properly limited in a democratic society. That leaves greater responsibility to the political branches of government – however they are inclined."

Chief Justice Roberts dissented in Massachusetts v. EPA, in which the Court found that the state of Massachusetts had standing to seek to force the administration to regulate greenhouse gases.  The state of Texas relies on that case in arguing that it has standing. 

 KJ 

April 18, 2016 in Current Affairs | Permalink | Comments (0)

Popes Takes Refugees Home to Rome

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The New York Times reports that Pope Francis after a visit into the heart of Europe’s migrant crisis, took 12 Muslim refugees from Syria, including six children, with him back to Rome aboard the papal plane. The action punctuated the pope’s pleas for sympathy for the refugees. "Those taken to Rome were three families — two from Damascus and one from Deir al-Zour — whose homes had been bombed in the Syrian war, the Vatican said in a statement as the pope departed the Greek island of Lesbos, where he had visited the Moria refugee camp." 

KJ

April 18, 2016 in Current Affairs | Permalink | Comments (0)

Sunday, April 17, 2016

The Four Lawyers Arguing United States v. Texas

SCOTUS Blog has reported that the following four lawyers will argue before the Supreme Court tomorrow in United States v. Texas:

  • United States Solicitor General Donald Verrilli, for the United States,  Verrilli
     
  • President/General Counsel of the Mexican American Legal Defense and Education Fund Thomas Saenz, for three parent intervenors who (like millions of other parents across the country) would benefit from DAPA,   Saenz_photo2
  • Texas Solicitor General Scott Keller (formerly Chief Counsel to Presidential candidate Ted Cruz), for the twenty-six states challenging DAPA and expanded DACA, andScottKeller
  • Erin Murphy, partner at the law firm Bancroft LLP, on behalf of the U.S. House of Representatives as amicus supporting the states' challenge to the President's immigration policy. Attdetail_emurphy

 -JKoh 

April 17, 2016 | Permalink | Comments (0)

Sexual Assault Conviction for Immigration Detention Facility Worker

Immigration Impact reports on the conviction of Daniel Sharkey, a former counselor at the Berks County Residential Center (located in Berks County, PA), for sexual assaults of a young Honduran mother fleeing violence in her home country.  His sentence will be anywhere from six to twenty-three months in jail for what Immigration Impact describes as "repeated sexual assaults" that "took place throughout the detention center." Sadly, reports of sexual assaults on women in immigration detention facilities are not new. 

-JKoh

April 17, 2016 | Permalink | Comments (0)

The Plight of Transgender Detainees

Guest blogger: LaTasha Hill, first-year law student, University of San Francisco

The inhumane treat of transgendered detainees in detention centers continue to be an issue for Immigration and Customs Enforcement (ICE). Previous detainees, family members of detainees, the immigration legal community, and non-profits have voiced concerns about detainee treatment. While, the United States government has taken steps to improve the treatment of detainees by drafting memos, the transgender population continues to deal with hostile treatment by staff and/or criminals being held at the same locations.

This issue is a serious concern within the LGBT community, since 75 transgender prisoners are detained by ICE each night. (Costantini, Cristina. Rivas, Jorge. Rios, Kristofer. “Why Did the U.S. Lock Up These Women with Men?” Fusion. 17 Nov. 2014. Web. 16 April 2016.) Ten percent of detainees are transgender men and ninety percent are transgender women. (Fusion). Some transgender detainees are subjected to egregious mistreatment, involving lack of access to hormones and other medications and placed in solitary confinement for long periods of time for their “protection.” (Tuchman, Rachel. “LGBT Detainees Remain in Harm’s Way Despite Government Guidance.” ACLU. 2015. Sat. 16. 2016) According to Fusion, of every five victims of confirmed sexual abuse in ICE detention, one victim is transgender.

In a 2014 Fusion article, a woman named Barbra Perez, was locked up in a men’s detention facility and while there, inmates made obscene gestures at her and some guards referred to her as “it.” Perez stated, “the fellow detainees viewed her as the ‘closest thing they had to a woman,’ which made her an immediate target.”

Since United States authorities claim to have the largest population of transwomen behind bars in the world, ICE issued an 18-page memo in 2015 from Executive Associate Director, Thomas Homan, providing further guidance regarding the placement and care of transgender adult detainees in the custody of ICE and Enforcement and Removal Operations (ERO). (ACLU) The memo states that ICE ERO “will provide a respectful, safe, and secure environment for all detainees, including those individuals who identify as transgender. Discrimination or harassment of any kind based on a detainee’s actual or perceived sexual orientation or gender identity is strictly prohibited.”

The Homan Memo discusses the usage of data system and forms as well as initial processing, initial placements, and care of transgender detainees while in ICE and ERO custody. The identification of Transgender now appears on the detainees personal I-213 Form. Also, during the initial processing, a detainee has the option to identify as transgendered and can inform the facility of any prescription medications that are needed. Additionally, the memo established the need for LGBTI (Lesbian, Gay, Bi-Sexual, Transgender, or Intersex) liaisons and coordinators to undergo awareness training, report the progress of implement and maintaining the provisions, and to further explore best practices and strategies.

Although the Homan Memo strives to make much needed improvements for the LGBTI population, detention facilities still face criticism for the use of solitary confinement. The Homan Memo says, “placement into segregation should occur only when necessary and in compliance with applicable detention standards.” However, the American Civil Liberties Union (ACLU) criticizes the fact that certain detention centers still use solitary confinement to house transgender individuals because of their vulnerability and placement based on sex at birth.

Over 300 people are in solitary confinement in ICE custody every night, including many transgender detainee. (Fusion) A United Nations expert on torture, Juan E. Mendez, believes that indefinite and prolonged solitary confinement of more than 15 days should be banned. There have been scientific studies that report lasting brain damage occurs within a few days of social isolation. While Perez was detained, the facility thought solitary confinement was her best option to remain safe from male inmates. Perez spent 20 days in a cell alone. She said, “desperation, anxiety, and depression started to eat away at her.” Normally, solitary confinement is used to punish inmates for breaking the rules, therefore, it is ironic that it is now being use as a method of protection and with the expectation that transgender detainees should look forward to it.

The Homan Memo, makes great strides to improve the treatment of transgender detainees but it lacks the authoritative power to mandate all detention facilities abide by these policies. Memos issued by U.S. Homeland Security staff, are only suggestive policies, with no power to be enforced.

Additionally, alternatives for transgendered detainment, such as separate housing have been discussed. In 2012, ICE established a “pod” at a detention center in Santa Ana, CA, that places gay, bisexual, and transgender detainees in their own unit. (Schiavenza, Matt. “LGBT Activists Are Still Fighting.” The Atlantic. 15 Jun. 2015. Web. 16 April 2016.)  Again, this is another progressive step by ICE, however, the headway was tainted by reports of harassment from “unsympathetic” prison staff.

Treatment of transgender detainees still remains an issue for ICE regardless of its attempts to improve its policies and reputation. Until ICE makes the guidelines in the Homan Memo mandatory at all detention facilities and invests in LGBT training for ICE and prison guards, these concerns will continue to be raised.

bh

April 17, 2016 | Permalink | Comments (0)

Oral Arguments in United States v. Texas

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Tomorrow, the U.S. Supreme Court will hear oral arguments in United States v. Texas, a lawsuit about the legality of some of President Barack Obama's executive actions on immigration. The initiatives in dispute -- expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)  -- have been on hold since a district court in Texas issued a preliminary injunction in the case in February 2015. 

Here are some resources compiled by the American Immigration Lawyers Association.

AILA and Council Resources:

 

Resources and Helpful Links:

KJ

April 17, 2016 in Current Affairs | Permalink | Comments (0)

Slick Rick Becomes U.S. Citizen

 

 Rolling Stone reports that Slick Rick, the English-born rapper behind hip-hop classics like "Mona Lisa" and "Children's Story," has been granted his U.S. citizenship after a 23-year legal battle. The influential rapper was sworn in as an American citizen Friday at a ceremony in New York.  The U.S. government had previously sought to deport Slick Rick.

In 1991, Slick Rick pleaded guilty to two counts of attempted murder and eight weapons charges stemming from an incident where the rapper shot his cousin Mark Plummer and a bystander. Sentenced to three-and-a-half to 10 years for the shooting, he was released from prison after six years and completed his parole in 2000. During that time, a judge canceled deportation proceedings against the rapper, granting him a waiver of admissibility. In 2008, then-New York Governor David Paterson officially pardoned Slick Rick, citing how he had become "a symbol of rehabilitation for many young people." "Given these demonstrated rehabilitative efforts, I urge federal immigration officials to once again grant Mr. Walters relief from deportation, so that he is not separated from his many family members who are United States citizens, including his two teenage children," Paterson said in his statement.

Slick Rick will maintain a dual citizenship with the United Kingdom. The rapper's U.S. citizenship will now allow for him to travel to and from the country in order to perform overseas. 

KJ

April 17, 2016 in Current Affairs, Music | Permalink | Comments (0)

Saturday, April 16, 2016

Profile: Robin Reineke, Executive Director of the Colibrí Center for Human Rights

Guest blogger: Anna Manuel, J.D. Candidate 2017, University of San Francisco, School of Law

Robin Reineke is my new she-ro. Currently a doctoral candidate at the University of Arizona School of Anthropology, she also is the co-founder and Executive Director of the Colibrí Center for Human Rights. Colibrí is an advocacy organization working to end migrant death and related suffering on the U.S.-Mexico border. Her working dissertation entitled, “Naming the Dead: Identification and Ambiguity along the U.S.-Mexico Border,” delves not only into the science involved in identifying unknown migrant remains, but also the political and social considerations therein. Her mentors include Dr. Bruce Anderson, forensic anthropologist at the Pima County Office of the Medical Examiner (PCOME), her advisor Tom Sheridan, an anthropologist, historian and writer, and Mercedes Doretti of the Argentine Forensic Anthropology Team. In 2014, Reineke was awarded the Institute for Policy Studies’ Letelier-Moffitt Human Rights Award, and was honored as one of Tucson’s “40 Under 40” by the Tucson Hispanic Chamber of Commerce.

Allow me to provide a bit of background on the nature of migrant deaths at the U.S.-Mexico border. During the 1990s and again after 9/11, border security was beefed up around the more frequently traversed migrant paths from Mexico into the U.S. This has caused a funnel-effect wherein migrants are now diverted from safer urban routs into dangerous remote reaches of borderland deserts, primarily in Arizona and Texas. Dangers include scalding hot temperatures during the day, freezing temperatures at night, rough mountainous terrain, desert washes, exceedingly dry or humid environments, poisonous snakes, and lack of drinking water. It is impossible to hand carry the amount of water required to sustain a human for the number of days it takes to reach the safety of a town or residence. Many migrants perish due to exposure and/or dehydration as a result of losing their group and becoming lost in these vastly uninhabited lands; some become too sick or injured to keep up, while others scatter when running from Border Patrol. When migrant remains are found, they are often difficult to identify because many do not carry identification in the event they are detained by Border Patrol, and because their bodies are in extreme states of decomposition due to the harsh elements mentioned above. Between 2000 and 2015, more than 6,000 people died while trying to migrate into the U.S.[1]—presumably, however, many more have in fact perished, their bodies yet to be discovered. The multi-faceted problem Reineke is tackling is that we have hundreds of unidentified migrant remains found in the U.S., a dearth of missing persons reports for migrants who go missing at the border,[2] and no centralized multi-national system in which to reconcile unidentified remains and missing persons reports.

Reineke’s professional record exhibits hard work, innovation, and devotion. In 2006, Reineke began her work with the PCOME, helping to identify migrant remains and to take missing persons reports—a task for which the PCOME is not actually responsible. She organized and archived missing persons reports, and took on the extensive mission of matching them with the unidentified remains. Reineke’s role at PCOME gave birth to the Missing Migrant Project, which was the pre-cursor to the Colibrí Center for Human Rights. Colibrí has a database of missing and unidentified migrants that is open to families of the missing, regardless of their immigration status, in effort to provide peace of mind to those who do not know the fate of their missing loved ones.

Bodies are central when it comes to mourning someone who’s lost . . . I think the experience of having someone missing is one of the most emotionally destructive human experiences possible. The person could be in the desert still suffering and lost while you’re going to someone’s birthday party. So every single day can feel somehow traumatic. That cumulative experience over years and years, sometimes, can really affect families.[3]

Challenges do not always end when there has been a positive identification of a family’s missing loved one. Ms. Reineke says the toughest thing her work requires is notifying the family of the death of a missing loved one. In one particularly difficult case, she had informed the family that the medical examiner had positively identified their loved one, Mario, and suggested they do not open the body bag due to Mario’s highly decomposed state.

They had opened the body bag, and what they saw was so horrifying that they no longer believed that it was Mario . . . They were so angry and distraught that they didn't want to speak with any of us again. I still feel badly about that case. I think it is an important story because it reminds us that, not only are people dying on the border, but they're bodies are brutalized by the conditions of the desert. It’s really hard on the families.[4]

Colibrí’s holistic approach to this humanitarian crisis is inspiring; science, research, and advocacy combine into a powerful tool for advancing human rights. In addition to her work in forensic science and missing persons investigations, Reineke has written numerous articles addressing political, anthropological, and sociological implications of these migrant border deaths as well as other related topics such as unaccompanied minors and U.S. foreign policy. She actively challenges, with hard statistical evidence, the U.S. Border Patrol’s erroneous “prevention through deterrence” strategy. Colibrí has set out to characterize immigration as an issue that ought to be addressed within the framework of compassion and human rights, not fear and criminality. Reineke advocates against the pervasive dehumanization of immigrants: “How have we come to define someone in terms of illegality to the point where somehow that’s more important than their humanity, than their families, than their hopes and dreams?”[5]

General Biographical Information

Colibri Center, http://www.colibricenter.org/.

About Robin Reineke, Univ. of Ariz. Coll. of Soc. & Behavioral Sci. Sch. of Anthropology, https://anthropology.arizona.edu/user/robin-reineke.

Sarah Illingworth, Identifying the Bodies of Border Crossers, Huffington Post, (April 8, 2015), available at http://www.huffingtonpost.com/sarah-illingworth/identifying-the-bodies-of-border-crossers_b_7023596.html.

 

[1] Sarah Illingworth, Identifying the Bodies of Border Crossers, Huffington Post, (April 8, 2015), available at http://www.huffingtonpost.com/sarah-illingworth/identifying-the-bodies-of-border-crossers_b_7023596.html.

[2] Our police force generally does not provide for missing persons reports of undocumented individuals, and the immigrant community distrusts the authorities, to name a couple reasons.

[3] Collegeofsbs, Torn Apart, Robin Reineke, Colibri Center For Human Rights, Human Rights Watch, YouTube (July 31, 2015), https://www.youtube.com/watch?v=yR9tARIVxvw.

[4] E-mail from Robin Reineke, Executive Director, Colibrí Ctr. for Human Rights, to author (Mar. 23, 2016, 20:28 PST) (on file with author).

[5] Collegeofsbs, supra note 3.

bh

April 16, 2016 | Permalink | Comments (0)

Immigration Article of the Day: Prosecutorial Discretion in the Context of Immigration and Marijuana Law Reform: The Search for a Limiting Principle by Sam Kamin

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 Prosecutorial Discretion in the Context of Immigration and Marijuana Law Reform: The Search for a Limiting Principle by Sam Kamin, University of Denver Sturm College of Law April 4, 2016 Ohio State Journal of Criminal Law, Forthcoming

Abstract: This article compares the appropriateness of prosecutorial non-enforcement policy in the contexts of federal immigration and marijuana laws. I begin by discussing the ways in which the Obama administration has set policy in both areas through the use of memoranda directing prosecutors in the exercise of their discretion. I show that in both of these contexts the administration has turned to the exercise of prosecutorial discretion rather than legislative change to achieve its policy outcomes. I turn next to the Take Care Clause, the constitutional requirement that the president faithfully execute the laws of the United States. I demonstrate that, although the Supreme Court has painted only the broadest outlines of the clause’s meaning, there are certain core ideas that seem to implicate the core of the doctrine. Finally, I apply the Take Care Clause in the two contexts, finding that in both that the Obama administration has acted within the bounds of its constitutional authority. In neither context has the Obama administration re-written legislation or engaged in the kind of categorical refusal to prosecute that might be constitutionally suspect.

KJ

April 16, 2016 in Current Affairs | Permalink | Comments (1)

The Notice and Comment Question in United States v. Texas

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Much has been written about the standing issue before the U.S. Supreme Court in United States v. Texas.  However, if the Court finds that Texas and the other states have standing under Article III to sue in federal court, it will be faced with a number of questions, including whether the deferred action "guidance" issued by the Obama administration  was subject to the Administrative Procedure Act’s notice-and-comment procedures.  In Notice and Comment Rulemaking in United States v. Texas. on the ACSBlog, Shoba Sivaprasad Wadhia thoughtfully analyzes the question.

KJ

April 16, 2016 in Current Affairs | Permalink | Comments (0)

Undocumented Immigrants’ State & Local Tax Contributions

Taxes are due Monday. I know, contain your excitement.

The Institute on Taxation and Economic Policy is taking the moment to tell you about their report: Undocumented Immigrants’ State & Local Tax Contributions.

Don't have time for the full 22 page report and its numerous tables? No problem. Report co-author Lisa Christensen Gee has a helpful summary in USA Today.

Here are some of the big takeaways:

  • At the state and local level alone, undocumented immigrants nationwide collectively pay an estimated $11.64 billion each year in taxes. That total includes more than $6.9 billion in sales and excise taxes (from everyday purchases and utility expenses), $3.6 billion in property taxes (either directly as homeowners or indirectly through rent), and over $1 billion in personal income taxes.
  • The best evidence suggests that at least 50% of undocumented immigrant households currently file income tax returns, and among those who don’t file, many still have taxes withheld from their paychecks.
  • Uundocumented immigrants nationwide pay on average 8% of their incomes in taxes to state and local governments. In contrast, the top 1% of taxpayers nationwide pay on average just 5.4%.
  • Creating a pathway to citizenship for the 11 million undocumented immigrants living in the United States and allowing them to work here legally would boost their current state and local tax contributions by more than $2.1 billion a year, The most significant revenue gain (50 percent) would come from the personal income tax, due to both increased earnings and full compliance with the tax code.
  • If fully implemented, granting temporary immigration relief to these 5 million undocumented immigrants through DACA and DAPA would boost their current state and local tax contributions by more than $805 million.

-KitJ

April 16, 2016 in Current Affairs | Permalink | Comments (0)

Friday, April 15, 2016

Immigration Clinics at the End of the Year/Semester

As the end of the academic year comes closer for those of us in law teaching, I wanted to send well wishes and words of appreciation to the professors, attorneys, and students representing clients and working on advocacy projects in immigration clinics across the country.  For many of us, the end of the academic semester and year means that applications for affirmative relief are being filed; court hearings for asylum, cancellation of removal, and other relief applications are taking place; clinic students are reflecting on how their relationships with their clients have taught them how to become attorneys; and clinical supervisors are reflecting on how much their students have grown.  Many clinic students around the country are experiencing case victories.  Others may be facing denials, and through those outcomes are confronting specific examples of the structural deficiencies in the immigration laws and in immigration adjudication.  As an immigration clinician myself, one of the many benefits of the job is the privilege of being part of a national community of other immigration law professors committed to advocating for noncitizens while training the next generation of attorneys. 

-JKoh   

April 15, 2016 | Permalink | Comments (0)

Immigration Article of the Day: The Geography of Border Militarization: Violence, Death and Health in Mexico and the United States

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The Geography of Border Militarization: Violence, Death and Health in Mexico and the United States by Jeremy Slack (University of Texas at El Paso), Daniel E. Martinez (George Washington University), Alison Elizabeth Lee (University of the Americas), Puebla Scott Whiteford (University of Arizona).  March 1, 2016 Journal of Latin American Geography, 15 (1), 2016

Abstract: Despite proposed increases in spending on personnel and equipment for border enforcement, the complex geography of border militarization and the violence it produces require further examination. We take a geographical perspective to determine the role of violence in both its official forms, such as the incarceration and punishments experienced by undocumented migrants, as well as through abuses and violence perpetrated by agents in shaping border and immigration enforcement. By drawing on the Migrant Border Crossing Study (MBCS), which is a unique data source based on 1,110 surveys of a random sample of deportees, as well as research with family members and return migrants in Puebla, Mexico, we provide an innovative and robust account of the geography of violence and migration. Identifying regional variation allows us to see the priorities and strategic use of violence in certain areas as part of enforcement practice. We assert that understanding the role of violence allows us to explain the prevalence of various forms of abuse, as well as the role of abuse in border enforcement strategies, not as a side effect, but as elemental to the current militarized strategies.

KJ

April 15, 2016 in Current Affairs | Permalink | Comments (0)

Conference: Agriculture: Water, Labor, and Immigration

Later this morning, UC Davis School of Law will host a conference on California Agriculture: Water, Labor, and Immigration.  his conference examines current issues in agriculture and farm labor. California agriculture and the farm workforce are changing. Scarce water, expensive land, and changing consumer preferences have increased the importance of fruits, nuts, vegetables, and horticultural specialties or FVH crops in the state’s farm sales. There are fewer newcomers to the farm workforce, prompting farm employers to take steps to satisfy current workers, stretch them with mechanical aids and substitute machines for hand workers, and supplement with H-2A guest workers.

For more details, click here.

KJ

April 15, 2016 in Current Affairs | Permalink | Comments (0)

Congressional Hispanic Caucus, House Democrats to Speak on United States v. Texas Oral Arguments

At 10:00 AM ET today, the Congressional Hispanic Caucus (CHC) and House Democratic leaders will hold a press conference on the United States v. Texas oral arguments.  The press conference will be livestreamed.

On Monday, April 18, the Supreme Court will hear the oral arguments in United States v. Texas, regarding President Obama’s executive actions to expand Deferred Action for Childhood Arrivals (DACA) and implement Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA).

Scheduled speakers:

Xavier Becerra, Chairman of the House Democratic Caucus

Linda T. Sánchez, Chair of the Congressional Hispanic Caucus

Luis Gutiérrez, Co-Chair of the CHC Immigration Task Force

Judy Chu, Chair of the Congressional Asian Pacific American Caucus

Lucille Roybal-Allard, Chair of the Congressional Women’s Working Group on Immigration Reform

Zoe Lofgren, Ranking Member of the House Judiciary Committee

Jose Aguiluz, DACA Recipient

KJ

April 15, 2016 in Current Affairs | Permalink | Comments (0)

Ingrid Eagly: Public Defenders Are Needed to Ensure Justice in Our Immigration Court System

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Ingrid Eagly writes about the need for guaranteed counsel in immigration court proceedings:

"The global migration crisis is placing immigration courts in the world spotlight. In the United States, immigration courts are severely backlogged and detention costs are soaring. Yet, because deportation is considered a civil, not a criminal, matter, the Sixth Amendment of the United States Constitution does not require the appointment of counsel. This lack of counsel is not only harming the immigrants subject to the deportation process, but it also prevents our courts from reaching just and efficient decisions when faced with increased migration flows.

Immigrants too poor to afford counsel need public defenders."

For more of this blog post, click here.

KJ

April 15, 2016 in Current Affairs | Permalink | Comments (0)