Tuesday, July 14, 2015
Judge Lawrence Karlton, retired U.S. District Court for the Eastern District of California, passed away Sunday, July 11, 2015 from a heart condition. In an industry where intellect reigns supreme, Judge Karlton fit right in. But, in his 35 years of service, Judge Karlton never forgot the importance of balancing the brain with the heart when making his decisions, a challenge that defeats many in his field. His judgments show an experienced mastery of the law, swirled in with compassion for the human condition. Nowhere is this more apparent than in 2009 when he, in a panel with two other judges, ruled to mandate a reduction in the California prison population in order to improve medical and mental healthcare within the system. Or more relevant to our discussion, his immigration decision in the late 1980’s provided amnesty for over 50,000 undocumented immigrants.
On November 6, 1986, Congress enacted 8 U.S.C. § 1255(a), granting legal status to undocumented immigrants who had maintained continuous presence in the U.S. since the statute’s enactment. The statute provided that “brief, casual, and innocent absences” would not break an alien’s continued presence. The Immigration and Naturalization Service (INS) sought to define “brief, casual, and innocent” as only agency-approved absences. An interpretation of this nature would have disqualified thousands of undocumented immigrants who had made brief trips outside the U.S. to visit dying relatives and even one man who fell asleep in a car and was unwittingly driven across the Mexican border by his friends seeking a couple hours of fun. These immigrants subsequently brought a class action, Catholic Social Services, Inc. v. Meese, challenging the INS’ definition of “brief, casual, and innocent” before Judge Karlton. While his opinion exercised the masterful application of law to facts, it’s likely not too much of a stretch to believe that a man, whom his previous law clerk described as someone who respected the humanity and dignity of even the most despised of society, kept the affected aliens in mind during his analysis.
In order to be certain he made the correct decision in Catholic Social Services, Judge Karlton applied the plain meaning rule, reviewed legislative history, reviewed the history of INS’ interpretation of “brief, casual, and innocent,” and the history of the court’s interpretation of the phrase. After analyzing the INS’ interpretation from these five different angles, Judge Karlton determined that there was simply no basis to uphold the agency’s definition of “brief, casual, and innocent” as only authorized departures. In addition to barring the INS’ from requiring advanced parole, Judge Karlton, realizing that the INS interpretation may have discouraged many aliens from applying for amnesty, mandated a temporary reopening of the application period.
After the decision, the INS agreed to remove the advanced parole requirement, but they appealed the requirement to extend the application deadline. However, subsequent litigation regarding this matter did not make an appearance in Judge Karlton’s courtroom until late 2011 in Catholic Social Services. v. Napolitano. Here, the plaintiff aliens, sued for attorney’s fees and costs, pursuant to the Equal Access to Justice Act, for their years of monitoring to ensure the agency properly enforced the case settlements. Again, after a thorough analysis and application of law to fact, Judge Karlton ruled in favor of the plaintiffs, granting their motion for fees and costs.
In his 35 years of service, Judge Karlton’s decisions have and will continue to affect countless individuals. Throughout his legal career, Judge Karlton fearlessly stood in the face of stigmatism; from his beginnings as an ACLU lawyer, defending the rights of draft dodgers, Vietnam War protestors, and unions, to his days on the bench, defending the liberties of criminals and undocumented immigrants, Judge Karlton’s decisions brimmed with understanding of both the intellectual and compassionate kind.
Vicky Yau is a second year law student at UC Davis School of Law.
For those who discuss translation issues in immigration court, have I got the song for you. Malina Kathleen Reese sings the anthem "Let it Go" from the movie Frozen, after running the lyrics through Google Translate (several times). The result is incredibly charming with lyrics like "Give up! Give up! Tune in and slam the door!"
The song is an excellent jumping off point for discussing:
- Quality problems for esoteric languages Quality problems for fluent speakers with agendas (e.g. a Tutsi translating for a Hutu)What it might be like for clients to not have other witnesses testimony translated for them, nor exchanges between the IJ and counsel
I learned of this great song from television personality John Oliver. In October 2014, John Oliver ran a scathing report on the U.S. treatment of military translators from Afghanistan and Iraq. It's really a must watch, if you missed it.
The interview with Mohammad toward the end of the program is a particularly excellent teaching tool as it provides a venue for class discussion on how we expect people to relay stories of intense horror (his father was murdered and his baby brother was kidnapped for ransom - facts he relays with little visible emotion) and the problems with judging veracity by way of demeanor in court.
This news clip shows some Presidential candidates discuss immigration, including Martin O'Malley and Bernie Sanders talking at a conference of National Council of La Raza. Donald Trump has the candidates talking about the issue, which will likely continue with the entrance of Wisconsin Governor Scott Walker in the race, who once supported and now opposes a path to legalization for undocumented immigrants.
Immigration Article of the Day: New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection
New Approaches, Alternative Avenues and Means of Access to Asylum Procedures for Persons Seeking International Protection by lspeth Guild Radboud (University Nijmegen - Faculty of Law), Kingsley Napley (Department of Immigration; The British Institute of International and Comparative Law; London School of Economics & Political Science (LSE)), Cathryn Costello (University of Oxford - Refugee Studies Centre, University of Oxford - Faculty of Law; University of Oxford - Department of International Development), Madeline Garlick (Centre for European Policy Studies (CEPS)), Violeta Moreno Lax (University of Oxford - Faculty of Law Minos Mouzourakis University of Oxford - Refugee Studies Centre). Sergio Carrera (Centre for European Policy Studies), December 1, 2014 European Parliament's LIBE Committee Report, 2014
Abstract: Upon request by the LIBE committee, this study examines the workings of the Common European Asylum System (CEAS), in order to assess the need and potential for new approaches to ensure access to protection for people seeking it in the EU, including joint processing and distribution of asylum seekers. Rather than advocating the addition of further complexity and coercion to the CEAS, the study proposes a focus on front-line reception and streamlined refugee status determination, in order to mitigate the asylum challenges facing Member States, and guarantee the rights of asylum seekers and refugees according to the EU acquis and international legal standards.
Monday, July 13, 2015
Why are Los Angeles and New York thriving economically with low crime rates? Immigrants!
In this article ("Immigration and America's Urban Revival") in the American Prospect, Professor Robert Sampson (Harvard) explains how the evidence favors a hypothesis many Americans reject: Immigration has helped reduce crime and revitalize city economies. Read the article and weep Mr. Trump!
KQED's California Report considers the divergent opinions about San Francisco's policy toward undocumented immigrants and its status as a so-called "Sanctuary City." The latest controversy started after Francisco Sanchez -- an undocumented immigrant from Mexico who was released from the county jail in April -- was arrested and charged with murdering 32-year-old Kate Steinle. She was shot and killed with a gun as she walked along a waterfront pier with her father. Sanchez had been repeatedly deported and re-entered the U.S. illegally. The tragedy set off a firestorm with presidential candidate Donald Trump fueling the flames; then the mayor, sheriff, the federal government and police all started pointing fingers at each other. So much of this debate -- it's become part of the presidential campaign now -- focuses on why this undocumented immigrant was released in San Francisco by the sheriff -- without notifying federal immigration authorities. Host Scott Shafer speaks about sanctuary cities and the complexities of immigration law with Kevin Johnson, Dean of UC Davis Law School.
There is big news in the Republiucan Party! Key Republicans are distancing themselves from presidential candidate Donald Trump's denunciation of immigrants from Mexico as rapists and criminals, saying he has become "a wrecking ball" for the party's ability to win Hispanic voters. Numerous companies have cut ties with the billionaire real estate developer over his comments.
"At the end of the day, for us to win a national election, we have to do better with Hispanics," presidential candidate and South Carolina Senator Lindsey Graham told CNN's "State of the Union" program. "And for us to have the moral authority as a party to govern a great nation, we have to reject this demagoguery. If we don't, we will lose, and we will deserve to lose."
According to to Wikipedia, a demagogue "is a political leader in a democracy who appeals to the emotions, fears, prejudices, and ignorance of the lower socioeconomic classes in order to gain power and promote political motives. Demagogues usually oppose deliberation and advocate immediate, violent action to address a national crisis; they accuse moderate and thoughtful opponents of weakness."
Parallels have been drawn between Trump's comments and California Governor Pete Wilson's support of the anti-immigrant initiative Proposition 187 in 1994, which helped Wilson win re-election but was the death knell for the Republican Party in California. While Proposition 187 brought out anti-Latino, anti-immigrant sentiment, Wilson did not use the harsh, coarse, and alienating language employed repeatedly by Trump.
Immigration Article of the Day: Race Inequity Fifty Years Later: Language Rights Under the Civil Rights Act of 1964 by Jasmine B. Gonzales Rose
Race Inequity Fifty Years Later: Language Rights Under the Civil Rights Act of 1964 by Jasmine B. Gonzales Rose, University of Pittsburgh - School of Law July 1, 2015 Alabama Civil Rights and Civil Liberties Law Review, Vol. 6, 2015, Forthcoming U. of Pittsburgh Legal Studies Research Paper No. 2015-22
Abstract: As Latinos have become the largest racialized minority in the United States, we should ask whether the civil rights laws of yesterday are equipped to address the race problems of today. Half a century after the passage of the Civil Rights Act of 1964, racial discrimination still exists, but it manifests itself differently. Rather than explicitly barring someone from employment, education, public accommodations, or civic participation on the basis of his or her race, racially discriminatory exclusion is often couched in seemingly race-neutral terms. English language requirements are one example of this. A sign outside a restaurant stating, “No Mexicans, Negros, or Dogs Allowed” (as was prevalent in the Southwest in the 1950s and 1960s) would be unlawful and condemned by the majority of Americans. However, a sign stating, “English only,” even when the common understanding is that in practice it means “No Spanish” and hence “No Latinos,” may survive legal scrutiny and even be celebrated as patriotic. It is often assumed that antidiscrimination laws protect all racial groups equally. This Article questions that assumption and explores the competence of the Civil Rights Act of 1964 to address racial discrimination against Latinos by examining the Act’s treatment of language discrimination in the areas of employment, education, public accommodations, and civic participation — concentrating in the latter respect on jury participation. This examination gives pause for both concern and hope.
Sunday, July 12, 2015
Judge Jerry Smith
Judge Jennifer Walker Elrod
Here is the audiotape of the oral arguments before the U.S. Court of Appeals for the Fifth Circuit on Friday in Texas v. United States. As we previously reported, with two of the judges (Judge Jerry Smith and Jennifer Walker Elrod) on the panel deciding the propriety of the preliminary injunction entered by the district court previously denied the stay of the preliminary injunction, it looks like it will be an uphill battle for the Obama administration. Listen to the arguments and judge for yourself.
Professor Erika Lee has an interesting commentary in the Orange County Register about the changes in Chinese immigration to the United States. As reported on ImmigrationProf, China recently surpassed Mexico as the country sending the largest number of legal immigrants to the United States. "Once singled out for exclusion by law from the United States, Chinese immigrants now make up the largest single group of arrivals a year into this country. A recent report by the Census Bureau reported that China replaced Mexico as the top country of origin for immigrants to the U.S. in 2013, and another report has found that China sends more students to the U.S. than any other country. What’s equally improbable, given the history, is that Chinese immigrants are now considered part of the rising Asian American `model minority,' showcasing how immigrants (and other minorities) can make it in America. Media portrayals of Chinese and other Asian Americans often contrast sharply to those of other immigrants, like undocumented immigrants from Mexico, or Middle Eastern Muslim immigrants unfairly tainted by association with terrorism."
Times change, or do they?
Time: "Donald Trump Outdoes Himself In Defiant Phoenix Speech", Calls for the Return of the "Silent Majority"
Celebrity businessman Donald Trump continues to play the immigration card in jumpstarting his campaign for the Republican nomination for President. And his harsh message on immigrants -- and anything foreign -- is not going away.
Time reports that, at a public event in Phoenix, Trump brought back the ghost of Richard Nixon in claiming to speak for a “silent majority” of Americans who are frustrated with the direction of the country. He appeared energized by the pushback his candidacy has received from the Republican Party and his primary opponents after suggesting weeks ago that Mexican immigrants are “rapists” and criminals. "In a rambling speech to a crowd of thousands in the Phoenix Convention Center, he struck a potent combination of populist and protectionist policies, designed to tap into the undercurrent of unease within American society." “We’re going to make America great again.”
According to the New York Times, "The speech, hosted by the Republican Party of Maricopa County, drew several thousand people to the Phoenix Convention Center, making it one of the largest events for any candidate so far, though short of the crowd of 10,000 predicted by the Trump campaign. Outside, in the 100-degree desert heat, supporters who could not make it into the room waved American flags and sparred with a smaller but vocal group of protesters."
Saturday, July 11, 2015
Two of the three appeals court judges who heard oral arguments yesterday on the Obama administration’s immigration programs were deeply skeptical about the legal justification for the expanded deferred action program announced in November 2014. The chilly reception from the three-judge panel of the U.S. Court of Appeals for the Fifth Circuit Court of Appeals on whether Obama had the legal authority to take such action seems to indicate that a lower court decision blocking the new programs will remain in place.
The Obama administration has argued that the executive actions were a standard use of prosecutorial discretion. Judge Jerry Smith, one of the judges who previously refused the Obama administration's request to stay the injunction barring implementation of the new deferred action program entered by the district court, disputed that contention. Smith said that “Just seems to me that … it really is a lot more than prosecutorial discretion.”
Judge Jennifer Walker Elrod, like Smith a Republican appointee who previously supported denial of the stay motion, repeatedly grilled administration lawyers. She questioned whether the Department of Homeland Security had “boundless” authority to grant work permits, and whether so-called “deferred action” could give work authorization to a broad class of people unlawfully in the United States.
Benjamin Mizer, the acting assistant attorney general for the Justice Department’s Civil Division, argued that both of the elements at the heart of Obama’s directive — stopping deportations and subsequently granting those immigrants work permits — were legally sound.
According to reports, Judge Carolyn King, an appointee of President Carter, leveled challenging questions to the Scott Keller, the Texas Solicitor General.
Friday, July 10, 2015
Judge Kane in federal district court in Denver refused last Monday to dismiss a class action by detainees at a private, for-profit immigration detention center, claiming they were entitled to compensation for the work they performed under the center’s Orwellian-named Voluntary Work Program. Menocal v. The GEO Group, Inc., 2015 US Dist LEXIS 87831 (D.Colo. 2015). According to plaintiffs, the center, in Aurora CO, required detainees to clean the facility, prepare meals, and do laundry, for compensation of $1 a day and under threat of solitary confinement if they didn’t.
The case was plead in a somewhat surprising way. There are two surviving claims. First, a federal claim under the Trafficking Victims Protection Act (TVPA), which provides a civil remedy against anyone who "knowingly provides or obtains the labor or services of a person by . . . means of force, threats of force, physical restraint, or threats of physical restraint." 18 U.S.C. § 1589(a); see id. § 1595 (providing civil remedy). Second, a common law unjust enrichment claim. Interestingly, neither of these claims is limited to statutory employees, and it is thus irrelevant whether or not the detainees are employees of the center, or self-employed, so long as they are not actually volunteers. Judge Kane did dismiss claims under Colorado state wage and hour law, deferring to administrative interpretations by the state that prisoners are not employees for purposes of that statute. Of course, immigration law professors all know why and how detainees are not prisoners. Still, the immigration advocate going the state wage-and-hour route should probably first seek relief from the relevant state labor regulators rather than ask a federal judge to overtake them.
Plaintiffs made no claim under the federal Fair Labor Standards Act (FLSA). Andy Schmidt of Towards Justice explained to me that, had they won on the state law claim, they might have added a federal claim. They felt Judge Kane would not rule for them on either and wanted to avoid a negative national precedent on the FLSA. So the issue remains open.
Not discussed at all, because no longer even controversial, is the obvious point that plaintiffs’ immigration status is irrelevant to their ability to enforce their rights to compensation under labor standards law, unjust enrichment, or the TVPA.
Share with your colleague who teaches contracts, who is probably looking for an unjust enrichment case more contemporary than Britton v Turner.
Alan Hyde, Distinguished Professor and Sidney Reitman Scholar
Rutgers University School of Law
A "realothetical" (re-Al-o-thetical), a word coined by my law professor husband, is an in-class problem pulled from the real world. Such problems can be fun for students, who see the exercises as a genuine step toward practice-readiness. They can also be messy, as the real world doesn't tend to turn out quite as neatly as the world of hypotheticals.
Photo via The State Bar of Nevada
The area of ethics, in particular, can be quite messy. But that mess can be a tremendous opportunity for engaging students and preparing them for the real world.
I am sharing with you today an immigration ethics realothetical that you could use in the classroom. It goes like this:
You are an immigration lawyer. A new client comes to your office for an initial consultation. The client is in removal proceedings and has weak claims to relief. During the course of your discussion, the client discloses that he was the victim of sexual assault while in jail. You suddenly see a genuine opportunity for relief - perhaps this person could be eligible for a U visa. You begin to ask questions about the crime and, in particular, whether the crime was reported or prosecuted. After hearing all about the heartbreaking circumstances of the crime, the victim tells you the name of his assailant. That name rings a bell - you have a client by the same name. But, you can't be sure. You ask for the description of the assailant. The description you get confirms your fears, it's your client. What red flags do you see? What should you do?
This is a realothetical. A real-life immigration lawyer was faced with this horrifying conundrum.
As for the first question (red flags), here are some prompts for starting classroom discussion:
- Can you represent the new client?
- Can you help the new client obtain representation with someone else?
- What if the result would harm your current client who would, after all, likely lose avenues for relief if convicted of the crime?
- Can you continue to represent your old client?
- What can you tell your old client about what you learned from the new client?
In terms of the second question (what should you do) consider the following prompts:
- Where would you look for advice?
- Imagine you practice in a small firm, would you ask colleagues within your firm for advice?
- Imagine you're a solo practitioner. Would you seek advice from other immigration attorneys? How?
- Did you know that state bar associations offer ethics hotlines? Would you call the hotline?
In terms of the real-world resolution of this realothetical - the immigration attorney terminated the consult with the new client and disclosed there might be a conflict of interest preventing the attorney from continuing to offer representation. The attorney contacted the bar hotline and sought advice from immigration attorneys. He was able to refer the "new" client to alternative counsel. He is prohibited from disclosing anything (including the potentially imminent criminal charges) to the client-assailant, whose own immigration case is ongoing.
I look forward to hearing from folks with other realotheticals that you think would make good classroom exercises.
As the 2016 presidential campaign ramps up, newly published immigration primers demonstrate broad support for reform in five key states — with more to follow.
Today is the day! The U.S. Court of Appeals for the Fifth Circuit will hear oral arguments today at 9 a.m. (Central Timne) in Texas v. United States, in which the district court preliminarily enjoined the Obama administration's expanded deferred action program from going into effect. Each side will have one hour for argument.
Observers are saying that the administration faces an uphill battle when it seeks to convince a panel of federal judges to lift the preliminary injunction prohibiting the president’s executive actions announced in November 2014 from going into effect. The same two Republican-appointed judges (Judges Jerry Smith and Jennifer Elrod) who denied the administration's attempt to stay the injunction will hear arguments at the U.S. Court of Appeals building in New Orleans.
The Hill reports that "Court watchers expect an unfavorable ruling for Obama from the three-judge panel, which sits on the most conservative circuit in the country."
There have been reports that there would be immigration protests outside the courthouse where the arguments will be held.
Nicholas Espiritu of the National Immigration Law Center an ImmigrationProf blog reported on the oral arguments on the Obama administration's request for a stay of the preliminary injunction before the Fifth Circuit in Texas v. United States in April. He will be at the arguments today and will provide ImmigrationProf with a post on the arguments. Stay tuned.
UPDATE (9 a.m. PST): There were peaceful pro-immigrant marches outside the Fifth Circuit courthouse this morning.
From the Bookshelves: The Human Right to Citizenship: A Slippery Concept by Rhoda E. Howard-Hassmann and Margaret Walton-Roberts, Editors
The Human Right to Citizenship: A Slippery Concept by Rhoda E. Howard-Hassmann and Margaret Walton-Roberts, Editors, Jun 2015. A volume in the Pennsylvania Studies in Human Rights series
In principle, no human individual should be rendered stateless: the Universal Declaration of Human Rights stipulates that the right to have or change citizenship cannot be denied. In practice, the legal claim of citizenship is a slippery concept that can be manipulated to serve state interests. On a spectrum from those who enjoy the legal and social benefits of citizenship to those whose right to nationality is outright refused, people with many kinds of status live in various degrees of precariousness within states that cannot or will not protect them. These include documented and undocumented migrants as well as conventional refugees and asylum seekers living in various degrees of uncertainty. Vulnerable populations such as ethnic minorities and women and children may find that de jure citizenship rights are undermined by de facto restrictions on their access, mobility, or security.
The Human Right to Citizenship provides an accessible overview of citizenship regimes around the globe, focusing on empirical cases of denied or weakened legal rights. Exploring the legal and social implications of specific national contexts, contributors examine the status of labor migrants in the United States and Canada, the changing definition of citizenship in Nigeria, Germany, India, and Brazil, and the rights of ethnic groups including Palestinians, Rohingya refugees in Bangladesh, Bangladeshi migrants to India, and Roma in Europe. Other chapters consider children's rights to citizenship, multiple citizenships, and unwanted citizenships.
With a broad geographical scope, this volume provides a wide-ranging theoretical and legal framework to understand the particular ambiguities, paradoxes, and evolutions of citizenship regimes in the twenty-first century.
Contributors: Michal Baer, Kristy A. Belton, Jacqueline Bhabha, Thomas Faist, Jenna Hennebry, Nancy Hiemstra, Rhoda E. Howard-Hassmann, Audrey Macklin, Margareta Matache, Janet McLaughlin, Carolina Moulin, Alison Mountz, Helen O'Nions, Chidi Anselm Odinkalu, Sujata Ramachandran, Kim Rygiel, Nasir Uddin, Margaret Walton-Roberts, David S. Weissbrodt.
Margaret Walton-Roberts is Associate Professor in Geography and Environmental Studies at Wilfrid Laurier University and the Balsillie School of International Affairs.
Thursday, July 9, 2015
A new nationwide survey of DACA recipients released today is one of the first to systematically quantify the wage effect of receiving deferred action, with data showing that DACA has increased average hourly wages for recipients by 45 percent. The survey, conducted by Tom K. Wong of the University of California, San Diego, the National Immigration Law Center, and the Center for American Progress, illustrates the economic and educational benefit of the program three years after its implementation.
Key findings of the survey include:
- A full 96 percent of respondents are currently employed or in school, showing that DACA has significantly helped recipients participate in the labor force
- 69 percent of recipients are getting better, higher-paying jobs than they had before they received DACA, with 57 percent of them reporting moving to a job “that better fits [their] education and training” and 54 percent moving to a job with better working conditions
- They are buying cars at high rates, with the survey finding that 21 percent of recipients bought their first cars and 89 percent of respondents obtained a driver’s license or state ID for the first time after receiving DACA
- 92 percent of respondents who are currently in school say that because of DACA, they pursued educational opportunities previously unavailable to them
Given that higher wages translate into more tax revenue and more economic growth, the survey findings suggest that DACA benefits all Americans.
Access the analysis of the survey here.
The New York Times Room for Debate has a debate entitled "Was Donald Trump Right About Immigrant Sanctuary Laws? Do these ordinances protect immigrants who just want to work, or do they threaten public safety?" Contributors include Sergio C. Garcia (lawyer), Jessica M. Vaughan (Center for Immigration Studies), Jan C. Ting (Temple), and ImmigrationProf bloggers Rose Cuison Villazor and Kevin R. Johnson.